阴山学刊

作为犯罪既遂形态的两种相互紧密联系的类型,明确行为犯与危险犯之间的界限对于妥当地处罚犯罪人是相当关键的。无论以危险的法定、危险的程度还是危险的表现形式来区别行为犯与危险犯都存在困难。行为犯和危险犯的区别的前提在于危险的表现形式不同以及对客体的关系不同。行为犯是与结果犯相对应的犯罪形态,而危险犯是结果犯的类型之一。行为犯与结果犯的区别在于立法是否规定了结果。危险犯与纯正的行为犯的区别在于是否通过行为结果表现对犯罪客体危险;危险犯与不纯正的行为犯的区别在于是否造成了现实的侵害。

It is important to carve up the bourn between the behavioral offence and potential damage offence. The standards including statutory danger, the degree of danger and the phenomena of the danger can't act as the role. The premise of the distinguishing between these two types lies in the difference on the phenomena of the danger and of the relationship to the objective. Behavioral offence is conception constructing to consequential offence, while potential damage offence is a type including the consequential offence. The difference between the behavioral offence and the potential damage offence lie on whether there is the statutory consequence or not. The line between the genuine behavioral offence and potential damage offence rests with whether the danger to objective display through the harm to the result of action; the line between the non-genuine behavioral offence and potential damage offence rests with whether the damage is realized.