基于刑法体系下高空抛物罪的法教义学分析

Legal Doctrinal Analysis of the Crime of Throwing Objects at High Altitude Based on Criminal Law System

摘要: 《刑法修正案(十一)》增设了高空抛物罪，为司法机关审理高空抛物类型的案件提供了明确的法律依据。但对于将其置于扰乱公共秩序罪的体系之下，确定其所保护的法益为公共秩序，未免有失偏颇。通过对于高空抛物罪的立法意图、保护法益以及其本质意义的分析得出，高空抛物罪的保护法益为公共法益，其中包括公共秩序法益和公共安全法益，其本质目的为维护公共安全。因此，将高空抛物罪置于扰乱公共秩序罪的体系下难免产生法理冲突，但若将其置于以危险方法危害公共安全罪的体系之下则有悖轻罪的罪刑相适原则以及刑法惩戒教育目的之嫌。要解决这一冲突，应当明确解释“情节严重”的条款，并从公共安全法益角度，以高空抛物犯罪性质轻重程度划分罪名适用情形，并以法益与构成要件为导向来制定相关的司法解释，以凸显立法目的，实现高空抛物罪同与危险方法危害公共安全罪的有效衔接。

Abstract: The 11th Amendment to the Criminal Law adds the crime of throwing objects at altitude, which provides a clear legal basis for judicial organs to try cases of throwing objects at altitude. However, it would be biased to place it under the system of disturbing public order crime and determine that the legal interest protected by it is public order. Through the analysis of the legislative intent, protection law benefit and its essential significance, it is concluded that the protection law benefit of the crime of throwing objects at high altitude is public legal interest, including public order legal interest and public security legal interest, whose essential purpose is to maintain public security. Therefore, placing the crime of throwing objects at high altitude under the system of the crime of disturbing public order will inevitably produce legal conflicts, but placing it under the system of the crime of endangering public security by dangerous means will go against the principle of appropriate punishment of misdemeanors and the purpose of criminal punishment education. In order to solve this conflict, we should clearly explain the provisions of “serious circumstances”, and from the perspective of public security legal interests, divide the applicable circumstances of the charges according to the severity of the nature of the crime of throwing objects at altitude, and formulate relevant judicial interpretations guided by legal interests and constituent elements, so as to highlight the legislative purpose and realize the effective connection between the crime of throwing objects at altitude and the crime of endangering public security by dangerous means.