被迫行為比較研究
發(fā)布時(shí)間：2018-11-17 21:06
【摘要】：被迫行為是指行為人在心理上受到嚴(yán)重脅迫產(chǎn)生恐懼的情況下，不自愿實(shí)施的犯罪行為。與一般意義上的犯罪行為不同，被迫行為的行為人在行為當(dāng)時(shí)意志自由受到了脅迫的影響，因而不能簡(jiǎn)單地對(duì)其作出否定性法律評(píng)價(jià)或進(jìn)行刑事處罰�？傮w上而言，被迫行為理論反映了法律與人性的沖突，是法律屈服于人性的一種表現(xiàn)。在英美法系國(guó)家，將被迫行為稱為脅迫，是一種區(qū)別于緊急避險(xiǎn)的獨(dú)立辯護(hù)事由。在大陸法系刑法中，各國(guó)家對(duì)被迫行為的規(guī)定不盡相同，有些國(guó)家將被迫行為規(guī)定為獨(dú)立的責(zé)任阻卻事由，如韓國(guó)；有的國(guó)家則將被迫行為視為緊急避險(xiǎn)的一種類型，如德國(guó)；還有的國(guó)家刑法中沒(méi)有對(duì)被迫行為作出明確規(guī)定，，而是將其作為一項(xiàng)超法規(guī)的責(zé)任阻卻事由存在，如日本。我國(guó)刑法中并沒(méi)有被迫行為這一概念，但我國(guó)學(xué)者對(duì)被迫行為的理論研究卻已日漸增多。理論上關(guān)于被迫行為性質(zhì)、被迫行為與緊急避險(xiǎn)及脅從犯關(guān)系的論文并不鮮見(jiàn)。本文首先立足于對(duì)兩大法系的被迫行為理論進(jìn)行比較研究，分析被迫行為在兩大法系犯罪構(gòu)成理論中的體系地位，并在此基礎(chǔ)上，試圖探討被迫行為理論對(duì)我國(guó)刑法的借鑒意義。 首先，本文介紹被迫行為的概念范疇，對(duì)被迫行為進(jìn)行了概括性論述，其中包括被迫行為的概念限界、性質(zhì)、及理論基礎(chǔ)等。法律上的被迫行為，一般是指行為人因心理受到暴力或暴力威脅的壓迫，在迫不得已的情況下按照強(qiáng)迫者的要求或意圖而實(shí)施的侵害第三者的行為。 其次，本文集中論述兩大法系被迫行為理論的異同。該部分內(nèi)容的論述主要分三個(gè)層面進(jìn)行。第一層面論述大陸法系中的被迫行為。大陸法系采用的是構(gòu)成要件該當(dāng)性、違法性、有責(zé)性三階層的犯罪構(gòu)成體系。雖然各國(guó)刑法的規(guī)定不盡相同，但在這一犯罪構(gòu)成體系中，被迫行為屬于責(zé)任阻卻事由。第二層面論述英美法體系中的被迫行為。被迫行為理論在英美法系刑法中具有獨(dú)立的法律地位，符合法律規(guī)定的被迫行為是一般辯護(hù)理由之一，若被告人的行為符合了被迫行為的法定要件，則被告人可無(wú)罪釋放。第三層面分析兩大法系被迫行為的構(gòu)成要件，并在此基礎(chǔ)上評(píng)析兩大法系的被迫行為理論。由于犯罪構(gòu)成體系的不同，大陸法系將被迫行為視為責(zé)任阻卻事由，而在英美法系中被迫行為是獨(dú)立的抗辯事由。但從宏觀上考察兩大法系犯罪構(gòu)成體系不難發(fā)現(xiàn)，兩者之間存在異曲同工之妙，即都是從犯罪構(gòu)成、違法性和責(zé)任三個(gè)方面來(lái)對(duì)一個(gè)行為予以考察的。 最后，本文試圖對(duì)被迫行為理論與我國(guó)的緊急避險(xiǎn)理論、脅從犯理論進(jìn)行比較分析。被迫行為在我國(guó)刑法體系中不是獨(dú)立的理論范疇，但是被迫行為的概念與我國(guó)的緊急避險(xiǎn)和脅從犯的理論存在交叉相似的內(nèi)容。我國(guó)學(xué)者對(duì)于被迫行為與脅從犯理論的比較研究也日漸增多，有學(xué)者指出脅從犯對(duì)我國(guó)的共犯理論造成了混亂，也有學(xué)者對(duì)此持反對(duì)意見(jiàn)。該部分試圖分析被迫行為與緊急避險(xiǎn)及脅從犯的理論關(guān)系，并在此基礎(chǔ)上指出國(guó)外被迫行為理論的借鑒價(jià)值。
[Abstract]:Forced behavior is a criminal act that the actor is not voluntarily committed in the case of fear of serious stress in the mind. In contrast to the criminal act in general sense, the perpetrator of the forced behavior is free to be affected by the coercion at the time of the act, so that the negative legal evaluation or the criminal punishment cannot be made simply. Generally speaking, the theory of forced behavior reflects the conflict between the law and the human nature, and is a manifestation of the law's submission to the human nature. In the Anglo-American law system, the forced behavior is called coercion, which is a separate defence case that is different from the emergency hedge. In the criminal law of the continental law system, the rules of the forced behavior of the countries are different, some countries will be forced to act as independent responsibility, such as Korea; some of the countries will be forced to act as one of the types of emergency hedge, such as Germany; There is no explicit provision for forced acts in the national criminal law, but is the subject of responsibility for an ultra-rule, such as Japan. There is no forced behavior in the criminal law of our country, but the theoretical study of the forced behavior of Chinese scholars has been increasing. In theory, the paper about the nature of the forced behavior, the forced behavior and the urgent need to avoid the relationship between the forced behavior and the slave-offender relationship is not uncommon. This paper is based on the comparative study of the forced behavior theory of the two legal systems, and analyzes the system status of the forced behavior in the two law system constitution theory, and on this basis, tries to explore the reference significance of the forced behavior theory to the criminal law of our country. First, this paper introduces the concept category of forced behavior, and gives a general discussion on the forced behavior, including the concept, the nature and the theoretical basis of the forced behavior. a forced act of a law, generally an act of oppression by a person who is subjected to a threat of violence or violence, which, in the last resort, is committed against a third party in accordance with the requirements or intent of the force. Second, this paper focuses on the forced behavior of the two legal systems. The content of this part is divided into three parts: At the first level, we discuss the civil law system. The forced behavior of the civil law system, which is used by the civil law system, is the three-class crime of the existence, the illegality and the responsibility. Crime constitutes a system. Although the provisions of national criminal law are different, it is the responsibility of the forced behavior in the system of crime. On the subject of any resistance, the second aspect of the Anglo-American law system The forced behavior theory has an independent legal status in the criminal law of the common law system, and the forced behavior according to the law is one of the general defense reasons. If the behavior of the defendant is in accordance with the legal requirements of the forced behavior, the defendant The third aspect analyses the constituent elements of the forced behavior of the two legal systems, and then evaluates the two legal systems. The theory of forced behavior. Due to the different constitution system, the civil law system will be forced to act as the subject of responsibility, and the forced behavior in the Anglo-American law system is independent. However, it is difficult to find out that the two law system constitution system is not difficult to find, that is, there is a difference between the two legal systems, that is, from the three aspects of the crime constitution, the illegality and the responsibility, In the end, this paper tries to study the theory of forced behavior and the theory of emergency hedge in China. The theory carries on the comparative analysis. The forced behavior is not the independent theory category in the criminal law system of our country, but the concept of forced behavior is the same as that of our country's emergency hedge and the criminal's theory. In the cross-similar content, the comparative study of Chinese scholars on the theory of the forced behavior and the crime of the accomplice has also increased, and some scholars have pointed out that the crime of the accomplice has caused the confusion and the study of the theory of the accomplice in our country. This part tries to analyze the theoretical relation between the forced behavior and the urgent need to avoid the crime, and on the basis of this, it points out that the foreign forces are forced to go
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D914
本文編號(hào)：2339036
[Abstract]:Forced behavior is a criminal act that the actor is not voluntarily committed in the case of fear of serious stress in the mind. In contrast to the criminal act in general sense, the perpetrator of the forced behavior is free to be affected by the coercion at the time of the act, so that the negative legal evaluation or the criminal punishment cannot be made simply. Generally speaking, the theory of forced behavior reflects the conflict between the law and the human nature, and is a manifestation of the law's submission to the human nature. In the Anglo-American law system, the forced behavior is called coercion, which is a separate defence case that is different from the emergency hedge. In the criminal law of the continental law system, the rules of the forced behavior of the countries are different, some countries will be forced to act as independent responsibility, such as Korea; some of the countries will be forced to act as one of the types of emergency hedge, such as Germany; There is no explicit provision for forced acts in the national criminal law, but is the subject of responsibility for an ultra-rule, such as Japan. There is no forced behavior in the criminal law of our country, but the theoretical study of the forced behavior of Chinese scholars has been increasing. In theory, the paper about the nature of the forced behavior, the forced behavior and the urgent need to avoid the relationship between the forced behavior and the slave-offender relationship is not uncommon. This paper is based on the comparative study of the forced behavior theory of the two legal systems, and analyzes the system status of the forced behavior in the two law system constitution theory, and on this basis, tries to explore the reference significance of the forced behavior theory to the criminal law of our country. First, this paper introduces the concept category of forced behavior, and gives a general discussion on the forced behavior, including the concept, the nature and the theoretical basis of the forced behavior. a forced act of a law, generally an act of oppression by a person who is subjected to a threat of violence or violence, which, in the last resort, is committed against a third party in accordance with the requirements or intent of the force. Second, this paper focuses on the forced behavior of the two legal systems. The content of this part is divided into three parts: At the first level, we discuss the civil law system. The forced behavior of the civil law system, which is used by the civil law system, is the three-class crime of the existence, the illegality and the responsibility. Crime constitutes a system. Although the provisions of national criminal law are different, it is the responsibility of the forced behavior in the system of crime. On the subject of any resistance, the second aspect of the Anglo-American law system The forced behavior theory has an independent legal status in the criminal law of the common law system, and the forced behavior according to the law is one of the general defense reasons. If the behavior of the defendant is in accordance with the legal requirements of the forced behavior, the defendant The third aspect analyses the constituent elements of the forced behavior of the two legal systems, and then evaluates the two legal systems. The theory of forced behavior. Due to the different constitution system, the civil law system will be forced to act as the subject of responsibility, and the forced behavior in the Anglo-American law system is independent. However, it is difficult to find out that the two law system constitution system is not difficult to find, that is, there is a difference between the two legal systems, that is, from the three aspects of the crime constitution, the illegality and the responsibility, In the end, this paper tries to study the theory of forced behavior and the theory of emergency hedge in China. The theory carries on the comparative analysis. The forced behavior is not the independent theory category in the criminal law system of our country, but the concept of forced behavior is the same as that of our country's emergency hedge and the criminal's theory. In the cross-similar content, the comparative study of Chinese scholars on the theory of the forced behavior and the crime of the accomplice has also increased, and some scholars have pointed out that the crime of the accomplice has caused the confusion and the study of the theory of the accomplice in our country. This part tries to analyze the theoretical relation between the forced behavior and the urgent need to avoid the crime, and on the basis of this, it points out that the foreign forces are forced to go
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D914
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