袭警罪与妨害公务罪的边界探析——基于189份裁判文书的判罚逻辑

An Analysis of the Boundary between the Crime of Assassinating Police Officers and the Crime of Hindering Official Duties—Judgment Logic Based on 189 Judgment Documents

摘要: 刑法第277条第5款规定的袭警罪和第1款规定的妨害公务罪是法条竞合，二者是特殊和一般的关系。警察公务执行的特殊性使得袭警行为被特殊规制。实践中，二罪评价性构成要件要素的抽象性带来了司法认定区分的困难，暴力袭击缺乏统一标准、袭警行为对象认定不明、致伤致损后果与量刑轻重间规律性弱、量刑趋同等反映了二罪区分的现实困境。对二罪界限的区分适用应在准确把握二者法条关系的基础上，明确基本构成要件的差异，以法益为实质性的区分标准，力求实现罪刑关系符合刑法基本目的，寻求体系性的解决办法。

Abstract: The crime of assaulting a police officer stipulated in Article 277 (5) of the Criminal Law and the crime of obstructing official duties stipulated in the first paragraph are overlapping legal provisions, and the two have a special and general relationship. The special nature of police official duties makes assaulting police officers subject to special regulations. In practice, the abstraction of the elements that constitute the evaluative elements of the two crimes has brought difficulties in distinguishing between judicial judgments. The lack of unified standards for violent attacks, unclear identification of the target of assaulting police officers, weak regularity between the consequences of injury and damage and the severity of sentencing, and the trend towards equal sentencing reflect the current difficulties in distinguishing between the two crimes. The distinction and application of the boundary between the two crimes should be based on an accurate understanding of the relationship between the two legal provisions, clarifying the differences in the basic constituent elements, using legal interests as the substantive differentiation standard, and striving to achieve that the relationship between crime and punishment conforms to the basic purpose of criminal law, seeking systematic solutions.