論不作為犯罪的因果關(guān)系
發(fā)布時(shí)間：2018-10-16 22:06
【摘要】：不作為與危害結(jié)果之間的因果關(guān)系問題,一直都是刑法因果關(guān)系研究中爭(zhēng)議的熱點(diǎn)問題。不作為是行為人對(duì)其所負(fù)有的某種特定的法律義務(wù)的不履行,正是由于其能夠履行而不履行的消極不作為,最終導(dǎo)致了本來可以避免的危害結(jié)果的出現(xiàn)。以不作為的方式構(gòu)成的犯罪被稱為不作為犯罪,其一般外在表現(xiàn)為消極的不作為,對(duì)可能發(fā)生的危害結(jié)果的故意或者漠視。不作為犯罪同時(shí)又可以分為純正不作為犯罪與不純正不作為犯罪。通常認(rèn)為,行為人以不作為的方式構(gòu)成的刑法分則條文明確規(guī)定以不作為方式構(gòu)成的犯罪是純正不作為犯,也有學(xué)者稱之為真正不作為犯。行為人以不作為的方式構(gòu)成刑法分則條文明確規(guī)定以作為方式構(gòu)成的犯罪,客觀上又同時(shí)導(dǎo)致法定實(shí)害結(jié)果的發(fā)生或者法定的具體危險(xiǎn)的出現(xiàn)的是不純正不作為犯,也叫不真正不作為犯。 刑法因果關(guān)系不是行為人承擔(dān)責(zé)任的必然條件,但卻是行為人承擔(dān)刑事責(zé)任的客觀基礎(chǔ),對(duì)于不作為犯罪因果關(guān)系來說,同樣是不作為犯罪人承擔(dān)刑事責(zé)任的客觀基礎(chǔ),因而不作為犯罪因果關(guān)系的認(rèn)定對(duì)于追究不作為犯罪有重要的現(xiàn)實(shí)意義。關(guān)于不作為犯罪的行為性、不作為犯罪的義務(wù)來源以及不作為犯罪的因果關(guān)系,在刑法學(xué)說史上曾經(jīng)有過很長(zhǎng)一段時(shí)間的爭(zhēng)論,時(shí)至今日仍然不能得出令人信服的權(quán)威性結(jié)論。本文嘗試從以下幾個(gè)部分對(duì)不作為犯罪的因果關(guān)系的問題作一探討。 第一部分,筆者對(duì)不作為犯罪因果關(guān)系的相關(guān)學(xué)說分國外和國內(nèi)兩部分進(jìn)行了詳細(xì)的論述和歸納,從理論學(xué)說上為深入研究和把握不作為犯罪的因果關(guān)系做了充足的準(zhǔn)備。對(duì)國外不作為犯罪因果關(guān)系的學(xué)說按對(duì)不作為犯罪因果關(guān)系的承認(rèn)與否分為肯定說和否定說兩大派,其中肯定說中根據(jù)對(duì)不作為犯罪因果關(guān)系的論證方法的不同又分為他行行為說、先行行為說、干涉說、作為義務(wù)違反說、防止可能性說、他因利用說、保證人說。國內(nèi)不作為犯罪因果關(guān)系學(xué)說大體上也是分為積極說和消極說兩種觀點(diǎn)。其中積極說中根據(jù)對(duì)不作為犯罪的原因力解釋的不同又分為作為義務(wù)違反說、防果可能說、轉(zhuǎn)轍說；消極說中根據(jù)具體的論證理由的不同,也分為擬制說和條件說兩種學(xué)說。 第二部分,筆者詳細(xì)論述了不作為犯罪因果關(guān)系區(qū)別于作為犯罪因果關(guān)系的特點(diǎn)。不作為犯罪的因果關(guān)系與作為犯罪的因果關(guān)系都具有因果關(guān)系的順序性、多樣性及客觀存在性的等特征,但同時(shí)不作為犯罪因果關(guān)系在原因、原因力、內(nèi)部結(jié)構(gòu)等方面都不同于作為犯罪因果關(guān)系而具有自身的特殊性。 第三部分,從原理性層面上對(duì)不作為犯罪因果關(guān)系進(jìn)行分析和探討,并對(duì)不作為犯罪因果關(guān)系的認(rèn)定和判斷進(jìn)行了詳細(xì)的論述。不作為犯罪因果關(guān)系的起果性原理和防果破壞性原理已為大多數(shù)學(xué)者所承認(rèn),對(duì)原理的探討和分析有助于不作為犯罪因果關(guān)系的理解和現(xiàn)實(shí)中的具體認(rèn)定。對(duì)于不作為犯罪因果關(guān)系的認(rèn)定,筆者認(rèn)為應(yīng)該區(qū)分純正不作為犯罪和不純正不作為犯罪,對(duì)純正不作為犯罪因果關(guān)系的認(rèn)定應(yīng)采用作為義務(wù)違反說加期待說；對(duì)不純正不作為犯罪因果關(guān)系的認(rèn)定應(yīng)采用干涉說加期待說。 第四部分,通過以上三部分對(duì)不作為犯罪因果關(guān)系的論述,結(jié)合現(xiàn)實(shí)中最具有爭(zhēng)議的不作為行為——見危不救,并對(duì)其區(qū)分不同類型以具體分析其各自的不作為因果關(guān)系,見危不救的不作為與危害結(jié)果之間具有因果關(guān)系的,該見危不救就構(gòu)成不純正不作為犯罪；反之,則不承擔(dān)刑事責(zé)任。
[Abstract]:As a cause-and-effect relationship with the result of harm, it has always been a hot issue in the research of causality of criminal law. Failure to perform as a specific legal obligation imposed by the perpetrator is precisely because of the negative inaction that it can perform, which ultimately leads to the emergence of a result of harm that could otherwise have been avoided. A crime, which is constructed as an omission, is referred to as a crime, which is generally characterized as negative inaction, deliberate or indifferent to the result of a possible harm. As a crime, it can be divided into pure and non-crime as crime. It is generally considered that the criminal law which the perpetrator constitutes in the form of omission clearly stipulates that the crime which is not constituted as a crime is pure and does not act as a crime, and the scholars call it true not to act as a crime. If the perpetrator does not constitute the criminal law in a way that does not act as a crime, the article clearly stipulates that the crime that is constituted as a way objectively and simultaneously causes the occurrence of the result of the legal real harm or the specific danger of the statutory harm is not pure and does not act as a crime, nor does it really act as a criminal. The causality of criminal law is not the inevitable condition for the actor to bear the responsibility, but it is the objective basis of the perpetrator to bear criminal responsibility. As a basis, it is not regarded as a causal relationship of crime, and it is important to investigate the crime of not being a crime Meaning: As to the behavior of crime, not as the source of obligation of crime and the causal relationship between crime, there have been a long period of argument in the history of criminal jurisprudence, and there is still no convincing authority. Conclusion. This article attempts to make a case study on the causal relationship between the crime and non-crime in the following sections: In the first part, the author discusses and sums up the related theories that do not act as a causal relationship between the two parts of the country and the two parts of the country. Sufficient preparation. The doctrine of non-criminal causality for foreign countries is divided into affirmation and denial as a result of the recognition of the causal relationship between crime and non-crime. Of these, it is affirmed that according to the different methods of argument that do not act as a causal relationship between crime, it is divided into two aspects: first behavior 'Interference,' he said, was a violation of his obligation to prevent the possibility of saying that he used to say "The theory of domestic non-crime causal relationship is generally divided into positive and negative aspects," he said. There are two kinds of viewpoints. Among them, according to the different kinds of explanation of the reason why the crime is not the crime, it is classified as an obligation violation, and the anti-fruit may be said to be different. In the negative way, according to the specific argument reason, it is also divided into the quasi-system theory and the condition In the second part, the author discusses the difference between the crime and the crime as a crime. The characteristic of causality is not as a causal relationship between the crime and the causality of the crime, but it does not act as a causal relation of crime. The reason, the reason force, the internal structure and so on are different from the criminal causality. The third part analyzes and discusses the causal relationship between the crime and the crime from the principle level, and concludes that there is no causal relationship between the crime and the crime. The principle of fruit and fruit destruction as a causal relationship of crime has been recognized by most scholars, and the discussion and analysis of the principle can not be used as a causal relationship. As for the determination of causality, the author holds that it should be distinguished that it is not as a crime and that it is not a crime, and that it should be adopted as a causal relationship between pure and non-crime. As a breach of an obligation, a breach of an expectation; a recognition of a causal relationship that is not pure. The fourth part, through the above three parts, does not act as the crime causal relation, in combination with the reality the most controversial omission act _ see danger is not saved, and distinguish it from different types If the individual does not act as a causal relationship, and if there is a causal relationship between the failure to rescue and the result of the harm, the failure to rescue shall constitute an impure omission.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D914
本文編號(hào)：2275772
[Abstract]:As a cause-and-effect relationship with the result of harm, it has always been a hot issue in the research of causality of criminal law. Failure to perform as a specific legal obligation imposed by the perpetrator is precisely because of the negative inaction that it can perform, which ultimately leads to the emergence of a result of harm that could otherwise have been avoided. A crime, which is constructed as an omission, is referred to as a crime, which is generally characterized as negative inaction, deliberate or indifferent to the result of a possible harm. As a crime, it can be divided into pure and non-crime as crime. It is generally considered that the criminal law which the perpetrator constitutes in the form of omission clearly stipulates that the crime which is not constituted as a crime is pure and does not act as a crime, and the scholars call it true not to act as a crime. If the perpetrator does not constitute the criminal law in a way that does not act as a crime, the article clearly stipulates that the crime that is constituted as a way objectively and simultaneously causes the occurrence of the result of the legal real harm or the specific danger of the statutory harm is not pure and does not act as a crime, nor does it really act as a criminal. The causality of criminal law is not the inevitable condition for the actor to bear the responsibility, but it is the objective basis of the perpetrator to bear criminal responsibility. As a basis, it is not regarded as a causal relationship of crime, and it is important to investigate the crime of not being a crime Meaning: As to the behavior of crime, not as the source of obligation of crime and the causal relationship between crime, there have been a long period of argument in the history of criminal jurisprudence, and there is still no convincing authority. Conclusion. This article attempts to make a case study on the causal relationship between the crime and non-crime in the following sections: In the first part, the author discusses and sums up the related theories that do not act as a causal relationship between the two parts of the country and the two parts of the country. Sufficient preparation. The doctrine of non-criminal causality for foreign countries is divided into affirmation and denial as a result of the recognition of the causal relationship between crime and non-crime. Of these, it is affirmed that according to the different methods of argument that do not act as a causal relationship between crime, it is divided into two aspects: first behavior 'Interference,' he said, was a violation of his obligation to prevent the possibility of saying that he used to say "The theory of domestic non-crime causal relationship is generally divided into positive and negative aspects," he said. There are two kinds of viewpoints. Among them, according to the different kinds of explanation of the reason why the crime is not the crime, it is classified as an obligation violation, and the anti-fruit may be said to be different. In the negative way, according to the specific argument reason, it is also divided into the quasi-system theory and the condition In the second part, the author discusses the difference between the crime and the crime as a crime. The characteristic of causality is not as a causal relationship between the crime and the causality of the crime, but it does not act as a causal relation of crime. The reason, the reason force, the internal structure and so on are different from the criminal causality. The third part analyzes and discusses the causal relationship between the crime and the crime from the principle level, and concludes that there is no causal relationship between the crime and the crime. The principle of fruit and fruit destruction as a causal relationship of crime has been recognized by most scholars, and the discussion and analysis of the principle can not be used as a causal relationship. As for the determination of causality, the author holds that it should be distinguished that it is not as a crime and that it is not a crime, and that it should be adopted as a causal relationship between pure and non-crime. As a breach of an obligation, a breach of an expectation; a recognition of a causal relationship that is not pure. The fourth part, through the above three parts, does not act as the crime causal relation, in combination with the reality the most controversial omission act _ see danger is not saved, and distinguish it from different types If the individual does not act as a causal relationship, and if there is a causal relationship between the failure to rescue and the result of the harm, the failure to rescue shall constitute an impure omission.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D914
【引證文獻(xiàn)】
相關(guān)期刊論文 前1條
1 呂凱;張兆玲;;見危不救立法問題研究——由小悅悅事件引發(fā)的法律思考[J];天津法學(xué);2012年02期
，本文編號(hào)：2275772
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