我国聚众斗殴罪的界定研究

　　摘 要

　　聚众斗殴罪是指组织、策划、指挥众人斗殴或积极参加聚众斗殴的行为。本罪既侵犯了社会公共秩序，也侵害了公民的人身权利；主体是一般主体，处罚对象为首要分子、积极参加者；聚众和斗殴均为实行行为；在主观方面，以斗殴双方都具有斗殴故意为条件，流氓动机不是聚众斗殴罪的成立要件。

　　聚众斗殴罪转化为故意伤害罪或故意杀人罪的前提是实施了聚众斗殴行为，还必须造成了超出斗殴性质所要求的致人重伤或者死亡的结果。斗殴中首要分子或者积极参加者在聚众斗殴中的主观故意由先前的斗殴故意转化为致对方个体重伤或者死亡的故意。

　　聚众斗殴罪是一种聚众性质的共同犯罪，必须认真分析各参与者的地位、作用，才能罚当其罪，对于行为人实施的超出斗殴性质所要求的加害行为，应属于“实行犯过限”.

　　要划清犯罪形态的界限，尤其是未完成形态，包括犯罪预备、中止和未遂。在聚众斗殴中，造成他人财产损失，同时触犯故意毁坏财物罪的，属于想象竞合犯。使用枪支、弹药、爆炸物又严重危害到公共安全的，遵循重法优于轻法的原则，直接以爆炸罪或以危险方法危害公共安全罪定罪量刑；为减少对方战斗力而扣押他人的，构成聚众斗殴罪与非法拘禁罪之间的牵连犯，应以一重罪处断。

　　聚众斗殴罪与相关犯罪的界限。单方聚众斗殴的情形与多人共同实施的寻衅滋事罪的主要区别在于：前者是行为犯；后者是情节犯，有“情节严重”的要求。聚众斗殴罪与故意杀人罪、故意伤害罪的界限在于犯罪动机。聚众斗殴罪与聚众扰乱社会秩序罪的界限主要在于：前者处罚的对象为首要分子和积极参加者，而后者只是首要分子；前者只能以暴力方式实施，后者可以采用非暴力方式。

　　关键词 聚众斗殴罪 犯罪构成 转化犯 特殊形态 界限

　　Abstract

　　The crime of affray is refers to the organization, planning, command the crowd to fightor actively participate in the affray behavior. Not only this crime violated the public order, butalso violated the personal rights of citizens; the subject of crime is the general subject, theobject of punishment include the ringleaders and the active participants; gathering the moband fights are both the act of perpetrating; in the subjective aspect, the condition is the all theparties involved the fight with intention of fighting, excepting hooliganism.

　　The crime of affray can be transformed into the crime of willful and malicious injury oroffence of intentional killing, and the premise is to implement the behavior of affray, mustalso caused serious injuries or the result of death. The subjective intention of the ringleadersor active participants in the affray has transformed into individuals intentionally causedserious injury or death from the intention of fighting.

　　The crime of affray had a mob nature, it's necessary for us to analyze each participant'sstatus, role in order to proportion the punishment to the crime. If the consequence of theinjuring behavior far beyond the intention of fighting, under the circumstances this actionshould belong to the surplus behavior. To draw the boundaries of the form of crime, especiallythe unfinished form of crime, including preparation, discontinuance and the attempt. In theaffray, causing the loss of property of others, and offend the crime of intentional damage toproperty, belonging to the imaginative joinder of offenses. The use of firearms, ammunition,explosives and taken a serious threat to the public safety at the same time ,according theprinciple of“Lex Posterior Derogat Legi Priori”or the priority of the felony compare with themisdemeanor, such behaviors should consider as the crime of explosion or the crime ofendangering public safety. In order to reduce the enemy's fighting force adopted illegaldetention, the crime of affray referring the conception of the implicated offense, singlepunishment for one serious crime.

　　To draw the boundaries of the crime of affray with the other related similar crimes. Themain difference between the crime of affray which involved a single party and the crowd stirup the crime of provocation is: the former is the behavioral offence, the latter is thecircumstances offense, “serious” is the substantive elements. The boundaries of the crime ofaffray and the crime of intentional homicide, even the crime of willful and malicious injury isthe crime motive. Dividing line of the crime of affray and the crime of disturbing social orderis the main object of the former: punishment as ringleader and protagonist, while the latterwas the ringleaders; the former can only be implemented by violent, the latter can becommitted by non violence.

　　Keywords the crime of affray The constitution of a crime transformation crimespecial morphological boundary of crime

    目 录

　　引 言······································································································································1

　　第 1 章 聚众斗殴罪的犯罪构成 ··························································································2

　　1.1 聚众斗殴罪的基本犯罪构成···················································································2

　　1.1.1 聚众斗殴罪的客体 ························································································2

　　1.1.2 聚众斗殴的客观方面·····················································································3

　　1.1.3 聚众斗殴罪的主体 ························································································6

　　1.1.4 聚众斗殴罪的主观方面·················································································8

　　1.2 聚众斗殴罪的加重犯罪构成················································································· 11

　　1.2.1 多次聚众斗殴 ······························································································ 11

　　1.2.2 聚众斗殴人数多，规模大，社会影响恶劣 ···············································12

　　1.2.3 在公共场所或者交通要道聚众斗殴，造成社会秩序严重混乱 ················13

　　1.2.4 持械聚众斗殴 ······························································································13

　　第 2 章 聚众斗殴罪的转化犯问题·····················································································15

　　2.1 聚众斗殴罪转化犯的适用条件·············································································15

　　2.1.1 聚众斗殴罪转化的前提···············································································15

　　2.1.2 聚众斗殴罪转化犯的客观方面要件 ···························································16

　　2.1.3 聚众斗殴罪转化犯的主体要件···································································16

　　2.1.4 聚众斗殴罪转化犯的主观方面要件 ···························································17

　　2.2 聚众斗殴罪转化后的罪名·····················································································18

　　第 3 章 聚众斗殴罪的特殊形态 ························································································20

　　3.1 聚众斗殴罪的共犯形态 ························································································20

　　3.1.1 聚众斗殴罪主从犯的认定···········································································20

　　3.1.2 实行过限的责任承担···················································································22

　　3.2 聚众斗殴罪的未完成形态·····················································································22

　　3.2.1 聚众斗殴的预备 ··························································································22

　　3.2.2 聚众斗殴罪的中止 ······················································································24

　　3.2.3 聚众斗殴罪的未遂 ······················································································25

　　3.3 聚众斗殴罪的罪数形态 ························································································27

　　第 4 章 聚众斗殴罪与相关犯罪的界限·············································································29

　　4.1 聚众斗殴罪与寻衅滋事罪的界限·········································································29

　　4.2 聚众斗殴罪与故意杀人、故意伤害罪的界限 ·····················································30

　　4.3 聚众斗殴罪与聚众扰乱社会秩序罪的界限 ·························································31

　　结 语····································································································································33

　　参考文献································································································································34

　　致 谢····································································································································36