中国恐怖主义犯罪的立法缺陷研究(2)

    Abstract：Since the beginning of the 21stcentury, terrorism crime has spread all over theworld which has threaten the world peace and safety. In some degrees, terroristorganizations and their members has become the public enemies. It has come to thetime when the whole world get together to the anti-terrorism strike. In considerationof social stability and the new situation of anti-terrorism, China is chasing up theInternational standard of the legislation of anti-terrorism step by step andcontinuously improving anti-terrorism provisions in criminal law. The ninth edition ofcriminal law amendment has made a major revision on terrorism crime clause, whichfill up the system of anti-terrorism criminal law and meet the need of the currentanti-terrorism strike.
　　
　　While making progress in the criminal legislation of anti-terrorism, we shouldalso improve the level of theoretical research in terrorism. There exists someunresolved theoretical problems in terrorism crime. Besides, some basic concepts stillcannot be clarified to each other. Especially, we should see the positive significance inthe provisions of the terrorism crime in the nineth criminal law amendment. What ismore, figuring out the current lack of legislation of terrorism crime is also in necessity.The article consists of three parts. In the basis of combing China's criminal legislationof terrorism crime, this article is going to resolve the theoretical problems of terrorismcrime. Some related international conventions provide a good reference for this study.
　　
　　The first part is about the overview of terrorism crime. It combines the history ofthe development of the terrorism crime and then analysis the cause of the terrorismcrime in multiple perspectives. Finally, it also makes definitions of terrorism crimeand the related concepts. Terrorist activities initially take the form of individualterrorism.With time going on, individual terrorist activities gradually developed intoorganized terrorism which was characterized by complexity of attacks cause,diversification of method, bad effects. In the 21st century, the terrorism crimepresented the organization highly collectivized, highly technical, highly covered onthe scope of “three highs” trend. The cause of the terrorism crime also presents thediversified developing trend. The main reasons are economic gap between the richand the poor, the political hegemony, the conflict between ethnic and religiousextremism. Terrorism organizations has become increasingly rampant under the publicopinion. Its behavior is increasingly rampant. In worldwide, definition of the terrorismcrime hasn't came to an agreement about the definition of terrorism crime. Ourcriminal law doesn't present clear conceptions of terrorism and extremism. Accordingto the article, clearing terrorism and the definition of its related concept in criminallaw is of great theoretical and practical significance, and help the judicial practice. Italso embodies the spirit of the principle of a legally prescribed punishment. Terrorismcrime has four basic characteristics which are complexity of the social relations towhich the crime makes harm, phobic of the criminal behavior, the integrity of theorganization, and the hierarchy of criminal purpose. Terrorism crime should besummarized as: individual or organizations, based on some kind of political, religious,or social purposes, use violent, terror, destructive means to make social terror, andseriously endanger public safety . The ninth amendment of criminal law, for the firsttime, introduce the concept of “extreme”. Extremist behavior, refers to the the fact thatany individual or organization, based on some kind of extreme ideas which are goesagainst the social mainstream and ethical or moral values and ideals or normal humanemotion, take means of violence or other means of non-violence against themselves ora third party, causing serious results. Compared to terrorism crime, they havesimilarities on behavior means of behavior, the purpose of the crime, and the socialrelations which the crime do harm to. However, they also have differences in theirorganizations and the direct crime object.
　　
　　The second part is the development course of terrorism crime in China'slegislation in criminal law. The article combines the China's legislation of terrorismcrime in criminal law and analyzes improvements in prescriptions of terrorism crimein the ninth amendment of criminal law. From 1997 when terrorism first beprescribed on the criminal law,to 2015 when terrorism crime was completed in theninth amendment of criminal law, and then to the time when China's firstanti-terrorism act takes effect, the terrorism crime of criminal legislation in China isgradually perfect, and initially form a law system consist of the anti-terrorism act,criminal law, the criminal procedure law. In view of the ninth amendment of criminallaw about the change of terrorism crime, the article will discuss the following fouraspects. First, comment on fine punishment of terrorism crime. On the basis of thepositive role of provisions of fine punishment, the article put forward the existingdefects of the current prescriptions and suggestions to make it right. Second, commenton helping behaviors of terrorism crime. The article expounds the criminal meaningof helping behavior and its positive significance, then, further differentiate the helpingbehavior and setting independent legal sentence for helping behavior. Helpingbehavior of crime, refers to the fact that criminal law help behavior of joint crimeoriginally for the practice of relevant criminal behavior way of legislation. Its positivemeaning is that it increases the provisions clarity of criminal law, expand the scope ofcriminal liability, and simplify the judicial verification steps. Helping behavior crimeand to help set up independent legal punishment has two differences.The first is thereare differences in the nature of helping behavior. The second is there are differences inthe form of the two measures. Third, analysis on the implementation of thepreparation behavior. Implementation of the preparation behavior reflect the conceptof “preset of law and interests protection”. In China, there exists punishments onperson who is ready to commit a crime. So, it is necessary to set up a new crime in theway of “preparation for action” in the field of terrorism crime. Implementation of thepreparation behavior helps to expand the circle of crime. The ninth amendment ofcriminal law added ready to implement the crime of terrorism, which is an implementaction of legislation. Forth, comments on the new mode of behavior. In addition to theabove new charges, it also added 4 new charges. New charges can be divided into twocategories, according to the different ways of behavior: first, promote, incite crime;second, the possession of a crime. It is of great significance in completing the criminallaw.
　　
　　The third part is the legislative perfection of the criminal law in our country. Thisarticle put forward some suggestions to improve the legislation of the terrorism crimefrom the two aspects. In the general provisions of the criminal law, it should make 3changes. First, the extension of the scope of jurisdiction. In the expansion of personaljurisdiction in criminal law on the provisions of the personal jurisdiction, in a new, itshould be added that: citizens of the people's Republic of China outside the territoryof the people's Republic of China make the crime of the provisions of Article 12 ofthis law, Article 120 of the six, applying this method. Second, limitation ofprosecution of the terrorism crime. The article thinks, there should be in the “criminallaw” Article 87 later, added that: for Article 120 to Article 120 of the six rules ofvarious types of crimes of terrorism, for Article 120 to Article 120 of the six rules ofvarious types of terrorism crime, maximum statutory penalty for 10 years withimprisonment, life imprisonment, the death penalty without limitation on the periodfor prosecution. The maximum statutory penalty for five years but less than 10 yearsin prison, the statute of limitations for a period of 15 years; maximum statutorypenalty for less than 5 years imprisonment, limitation of prosecution deadline for 10years. Third,an additional deprivation of political rights for the crime of terrorism. Itshould be added that in the criminal law, after first fifty-sixth, a new paragraph: forthe implementation of the provisions of the 120th to six of the 120th provisions of thecrime of terrorism, should be added to deprive the political rights. In criminal law, itshould be added to endanger the safe navigation, the crime of endangering continentalshelf platform security crime.

目 录

导 言.........................................................................................................1
第一章 恐怖主义犯罪概述 ......................................................................3
第一节 恐怖主义行为历史溯源及犯罪成因.......................................................3
一、恐怖主义行为的历史回顾......................................................................3
二、恐怖主义犯罪的成因..............................................................................4
第二节 恐怖主义犯罪及其相关概念辨析...........................................................7
一、界定恐怖主义的困境与意义..................................................................7
二、恐怖主义犯罪概念的界定......................................................................7
三、极端主义行为的界定............................................................................12
四、恐怖主义犯罪与极端主义行为的辨析................................................15
第二章 我国恐怖主义犯罪刑事立法的发展轨迹................................17
第一节 我国刑法关于恐怖主义犯罪规定的回顾.............................................17
一、恐怖主义犯罪首次入刑........................................................................17
二、恐怖主义犯罪刑事立法全面展开........................................................18
三、恐怖主义犯罪刑事立法继续推进........................................................19
四、恐怖主义犯罪刑事立法不断充实........................................................20
第二节 对我国当前刑法中关于恐怖主义犯罪规定的评析.............................20
一、关于恐怖主义犯罪罚金刑的评析........................................................20
二、关于帮助行为正犯化的评析................................................................24
三、关于准备行为实行化的评析................................................................27
四、关于增设新型行为方式的评析............................................................30
第三章 我国关于恐怖主义犯罪的刑事立法完善................................32
第一节 关于恐怖主义犯罪刑法总则规定的完善.............................................32
一、管辖权适用范围的延伸........................................................................32
二、恐怖主义犯罪的追诉时效的延长........................................................33
三、应当附加剥夺政治权利........................................................................34
第二节 关于恐怖主义犯罪刑法分则规定的完善.............................................34
一、增设危及海上航行安全罪....................................................................35
二、增设危及大陆架固定平台安全罪........................................................36
结 语...................................................................................................38
参考文献...................................................................................................39
在读期间发表的学术论文与研究成果..................................................41
后 记...................................................................................................42

　　
　　Key Words: Terrorism crime; Ninth Amendment of Criminal Law;Legislative Perfection; Scope of Jurisdiction; TheLimitation of Prosecution; Deprivation of PoliticalRights.