刑事司法语境中恶意欠薪入罪化的体系性反思

《刑法修正案（八）》新增拒不支付劳动报酬罪。国家机关是该罪的犯罪主体。欠薪行为人罪化的关键在于行为人具有恶意。“经政府有关部门责令支付仍不支付”的规定对关于恶意的证据认定做了有力补充。拒不支付劳动报酬罪为结果犯，影响该罪成立的是追诉时效。该罪的免责条款规定较为严格，而这实际上与该罪设立之初的立法原意相违背，应当予以修正。

Systematic Rethinking of in the Context the Malicious Back Pay Crime of Criminal Justice

The malicious back pay crime was newly added to the Criminal Law Amendment （8th）, in which state organs should become the subject of this crime. The key of the back pay behavior becoming a crime lies in ＂malicious＂. The rule of ＂Still not to pay after receive the order from relevant governmental departments＂ supplements the affirmation of evidence of the ＂malicious＂. The malicious back pay crime is consequential offence. Limitation of prosecution shall influence the establishment of the crime. The excep- tions of this crime is strict, but in factl it is against the preliminary legislative intent of establishing this crime, so it should be corrected.