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针对聚众斗殴非典型样态的刑法处遇,我国刑法现行的所谓转化犯模式因为理论不足而面临诸多挑战。借由对美国刑法中针对类似情况所建构的重罪谋杀规则的分析,可以认为由于我国刑法缺乏有效民意拟制机制,因此存在理论缺陷的转化犯理论不具有存在的正当性,应予废止。对于聚众斗殴致人死亡的刑事责任处理,可通过刑罚设定与适用的方法来加以解决。
In response to the criminal law of atypical forms of aggression and assault, the so-called transformational criminals model in criminal law in our country faces many challenges due to the lack of theory. The analysis of the murder rules of felonies constructed by similar criminal cases in the United States criminal law suggests that because of the lack of an effective public opinion drafting mechanism in China’s criminal law, the theory of transformative crimes with theoretical defects does not have the existence of legitimacy and should be repealed. The criminal liability for the death of people gathered to fight can be resolved through the setting of penalties and the applicable methods.