低龄未成年人犯罪的法律适用研究

Study on the Legal Application of Crimes Committed by Underage Minors

摘要: 《刑法修正案(十一)》新增了最低刑龄的规定，将最低刑龄有条件地降低至十二周岁，由此也产生了如何正确适用的问题。最低刑龄的设置并不是以个案为导向，不可一味降低，而应以主体的刑事责任能力与受审能力为依据。该条款的实体要件争议与不明较多，对于“犯故意杀人、故意伤害罪”是罪行还是罪名之争，应注意保护社会秩序与未成年人权益的平衡，采“罪行 + 两个特定罪名说”。从当然解释的逻辑角度出发，运用“择一对应论”的原则，将“致人死亡”或“以特别残忍手段致人重伤造成严重残疾”这一法律后果要件，与先前提及的罪名范畴进行逐一匹配，构建出四种具体且合理的情形组合，这种做法显得尤为合理且可取。通过犯罪动机、行为次数、被害对象等积极因素以及身心能力等消极因素综合判断是否达到“情节恶劣”的程度。程序上，应采取同级检察机关层层报请的方式，赋予各级检察机关审查权，审慎对待低龄未成年犯罪案件的处理，同时合理处置报请期间的低龄未成年人，保护其不受二次伤害。

Abstract: Criminal Law Amendment (XI) added a new provision on the minimum age of imprisonment, conditionally lowering the minimum age of imprisonment to twelve years, which raises the question of how to apply it correctly. The minimum age of imprisonment is not set on a case-by-case basis and cannot be lowered arbitrarily, but should be based on the subject’s capacity for criminal responsibility and ability to stand trial. The substantive elements of the article are more controversial and unclear. For “intentional homicide, intentional injury” is a crime or offense. It is important to pay attention to balancing the protection of social order and the rights of minors. Therefore, the approach of adopting the “crime + two specific crimes” perspective should be considered. From the logical point of view of ipso facto interpretation, applying the principle of “selective correspondence theory”, the legal elements of “causing death” or “inflicting serious injuries and causing serious disabilities by particularly cruel means” should be combined with the previously mentioned legal elements of “intentional homicide and intentional injuries”. It is particularly reasonable and desirable to match the legal elements of “causing death” or “causing serious injury with particularly cruel means resulting in serious disability” with the previously mentioned categories of crimes one by one to construct four specific and reasonable combinations of circumstances. Positive factors such as the motive for the crime, the number of acts, the victim, and negative factors such as physical and mental ability are used to determine whether the degree of “aggravating circumstances” has been reached. In terms of procedure, the approach of reporting to the procuratorates at the same level should be adopted, giving the procuratorates at all levels the power to review and handle cases of crimes committed by underage minors in a prudent manner, while at the same time dealing with underage minors during the reporting period in a reasonable manner, so as to protect them from being victimized twice.