将流氓动机作为区分刑事责任的一种手段

V. F. Lapshin, N. N. Kemova
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摘要

在现代刑法理论中,对于区分刑事责任的最佳和必要手段的数量并没有达成共识。因此,加重处罚的限定标志和情节类型清单仍在形成过程中。流氓动机是相当常见的犯罪动机,但迄今为止尚未被视为加重处罚情节之一,这为对所犯罪行实施处罚时偏离公正原则创造了条件。本研究的目的是证实将出于流氓动机的犯罪认定为加重处罚情节。将流氓动机认定为从重处罚情节将使流氓动机的使用系统化,它既是某些犯罪要素的限定特征,也是一种情节,确立这种情节意味着加重所选择的刑事责任措施的严厉程度。这将有助于做出公正的司法判决。事实证明,任何出于流氓动机实施的犯罪都具有公共危险性增加的特点。如果犯罪事实不包括流氓动机这一限定特征,那么在量刑时就应考虑这一动机。研究结果可用于刑事责任区分和个性化手段领域的研究。在起草关于补充《俄罗斯刑法典》第 63 条的法律草案时,可以考虑作品中提出的理论依据。俄罗斯刑法典》(以下简称《刑法典》)第 63 条是另一个加重处罚情节。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Hooligan motivation as a means of differentiation of criminal responsibility
In modern criminal law theory, there is no consensus on the optimal and necessary number of means of differentiating of criminal responsibility. Therefore, lists of types of qualifying signs and circumstances aggravating punishment are still in the process of being formed. Hooligan motives are fairly common motive for committing a crime, but so far it has not been considered as one of the aggravating circumstances, which creates conditions for deviation from the principle of justice when imposing punishment for a committed crime. The purpose of the study is to substantiate the recognition of a crime committed from hooligan motives as an aggravating circumstance. The recognition of a hooligan motive as an aggravating circumstance will allow systematizing its use as both a qualifying feature of certain elements of crimes and a circumstance, the establishment of which implies an increase in the severity of the chosen measures of criminal responsibility. This will contribute to the issuance of fair judicial decisions. It is proved that any crime committed out of hooligan motives is characterized by an increased degree of public danger. If the corpus delicti does not include hooligan motives as a qualifying feature, then this motive should be taken into account when sentencing. The results of the study can be used for research in the field of means of differentiation and individualization of criminal liability. The rationale presented in the work can be taken into account when preparing a draft law on supplementing Art. 63 of the Criminal Code of Russia (hereinafter referred to as the Criminal Code) is another aggravating circumstance. 
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