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军事犯罪作为军事刑法的核心概念,其界定直接影响军事刑法的研究范畴和功能实现。学术界对军事犯罪概念的争议多集中在对军事犯罪范畴的界定上。从军事刑法价值取向、军纪与军事犯罪的关系以及军事司法管辖的趋向来考察,应将非军人实施的危害国防利益罪排除在军事犯罪之外,将军人普通刑事犯罪纳入到军事犯罪的范畴。据此,军事犯罪的范畴应包括:军人违反职责罪、军人实施的危害国防利益罪、军人实施的普通犯罪。
Military crime, as the core concept of military criminal law, defines the scope and function of the research that directly affects military criminal law. The controversy over the concept of military crime in academia mostly focuses on the definition of the category of military crimes. Considering the value orientation of military criminal law, the relationship between military discipline and military crimes and the tendency of military judicial jurisdiction, crimes against national defense committed by non-military personnel should be excluded from military crimes and ordinary military crimes should be included in the scope of military crimes. Accordingly, the scope of military crimes should include: crimes committed by military personnel in violation of their duties, crimes against national interests committed by military personnel, and common crimes committed by military personnel.