“扫黑打伞”刑法适用问题研究

现行《刑法》是将"保护伞"作为黑社会性质组织认定的"选择性"要件,改变了之前"必备性"要件的地位。依据刑法理论的解释以及"扫黑"的现实需要,除国家机关工作人员之外的其他国家工作人员也可作为"保护伞"成立的主体。黑社会性质组织和保护伞的结合主要有四种模式,具体分类对实现"打准打实"的目的具有重要作用。在审理"扫黑打伞"刑事案件中,应坚持认罪认罚从宽制度。当包庇、纵容黑社会性质组织罪与徇私枉法罪发生竞合时,应根据法条竞合的适用原则以及行为人的主观方面,认定具体的犯罪。而四种模式中的罪数认定,应根据具体情况进行分析,对不同模式的行为分别进行认定。此外,通过解释刑法总则、分则之间关系,否定黑社会性质组织犯罪刑罚适用中存在"重复评价"。

Study on Cracking down Mafia-type Organized Crimes and Breaking up the Umbrella through Criminal Law

The current criminal law considers "umbrella" as a "selective" element of mafia-type organized crimes, which changes the status of its’ "essential" role than before. According to the interpretation of criminal law theory and practical requirement for "sweeping underworld", other officials can also be considered as playing the role of "umbrella" for mafia-type organized crimes rather than those officials in state-owned agencies. There are four patterns for combination of mafia-type organization and "umbrella" that are playing the fundamental roles on punishing accurately and strongly after specific the categories. It is admitted that the confession of guilt and punishment should be insisted when dealing with the case of "Mafia-type organized crimes and breaking up the umbrella. If there is competition between harboring, conniving mafia-type organized crime and crime of engaging in malpractices and perverting with the law, the conducts should be considered as a specific crime in accordance with the principle of statute concurrence and the perpetrator’s meas rea. While defining the number of "four patterns" related to mafia-type organized crimes, each of them should be investigated separately and identified the specific crime in match with the patterns. In addition, it should be concluded that there is no repeated negative evaluation in applying for criminal punishment by explaining the relationship between the general provisions and special provisions of criminal law that are related to the mafiatype organized crimes.