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现实中,基于司法实务的操作,故意伤害罪往往需要到达轻伤以上的标准,才可予以处罚,因而使得那些行为手段恶劣,但未符标准的伤害行为得以逃出惩戒,本文以故意伤害罪分属于行为犯与结果犯的不同考量,提出两种不同的路径,一是作为行为犯性质的故意伤害罪,其以未遂犯的理论解决之,二是作为结果犯的故意伤害罪,其以增设暴行罪的方式解决之。
In reality, based on the operation of judicial practice, intentional assault often needs to reach the standard of minor injuries before it can be punished. As a result, those acts that are abusive but not standard can escape punishment. In this paper, There are two different paths that are different from those committed by the perpetrator and the result perpetrator. One is the crime of intentional assault committed as a nature of the perpetrator, which is solved by the theory of attempted crime and the other is the crime of intentional assault as a result Add atrocity crime way to solve it.