刑法上被允许的危险研究
发布时间:2018-07-27 18:57
【摘要】:当科技发展、社会进步,与法益保护、安全保障难以两全的情况下,如何化解这种两难悖论,就成为所有刑法学者都不得不面对的一个问题,这就需要我们探求相应的考量艺术,以做出一种价值最大化、最理性的选择。被允许危险理论的价值,就在于在社会发展与安全保障价值之间找到了一个平衡点,其通过对一些具有法益侵害危险但又为社会发展所不可或缺的行为类型设置的出罪机制,最大限度衡平了发展与安全之间的价值冲突。 那么,被允许的危险出罪的理论根基在哪?这首先要理清一个根本前提,那就是一什么是犯罪?犯罪的本质是什么?法益侵害说,把犯罪看成对法益的侵害或威胁,是结果无价值的彰显,但无疑也有以结果论责任之嫌;规范违反说,认为犯罪是对法律背后的社会规范的违反,以行为人的不法论责任,虽体现了行为无价值的倾向,但规范内涵与外延的模糊性也使犯罪圈的划定有被扩大的风险。因而,法益侵害与规范违反二元的犯罪本质论得到众多学者的青睐,而建立在结果非价暨行为非价二元论立场上的被允许的危险理论,也正是对传统过失理论长期强调结果无价值、以结果论责任进行反思的结果,其以实质违法性为根基,有效修正了传统结果无价值论下过失犯罪圈过于扩大的倾向。 文章正文分为五个部分。引言部分主要就本选题的提出、研究意义和研究目的作出提纲挈领的概述,结束语部分主要对全文内容给予高度总结,并就理论未来作出展望。 第一部分:被允许危险理论的缘起。主要阐释了被允许危险的理论内涵和发展变迁。通过全面解读被允许危险的基本概念、特征、价值机能,明确了被允许危险的理论内涵,从横向梳理了被允许危险在今天的理论脉络;通过具体阐述被允许危险的理论萌芽、确立和演变,理清了被允许危险的发展变迁,从纵向明晰了被允许危险在历史上的演化轨迹。 第二部分:被允许危险的理论基础。主要阐释了被允许危险的理论渊源和正当化根据。通过考察被允许危险与新旧过失论、注意义务限制论、危险分配理论、信赖原则、客观归属的理论的关系,探究了被允许危险的理论渊源;通过法益衡量说、目的说和社会相当性说三种观点的学说争鸣和理论检讨,最终阐明了本文对社会相当性说的提倡,明确了被允许危险的正当化根基。 第三部分:被允许危险的体系定位。主要探讨了被允许危险在德日大陆法系犯罪论语境及在我国犯罪构成视野下的体系归属。在三阶层犯罪论体系下,被允许危险的地位归属主要涉及构成要件该当性阻却说、违法性阻却说、有责性阻却说和违法有责阻却两分说四种观点争议;在我国耦合式的犯罪构成体系下,由于实质违法性的判断已经融入各个构成要件之中,故被允许危险的体系归属就不存在如上大陆法系下的争议。 第四部分:被允许危险的判断基准。主要通过在对国内外相关学者的见解予以反思的基础上,尝试对被允许危险判断基准进行构造。鉴于结果与行为非价二元论的立场,将被允许危险的判断基准从法益衡量与行为样态考量两个方面给出尽量详实而有可操作性的判断基准,以使被允许危险在实践中的适用有据可依。 第五部分:被允许危险的实践适用。主要从两个角度入手,首先结合当前的社会背景论述了被允许危险的适用范围必然不断扩大的倾向;之后,以被允许的危险在医疗实践领域的具体适用为范例,探析了医疗行为适用被允许危险的正当化要件、被允许危险对医疗注意义务与医疗过失的具体判定以及被允许危险在医疗实践领域的适用限制等,通过被允许的危险在实践运用中的这一典型缩影,有力彰显了该理论的巨大实用性。
[Abstract]:When the development of science and technology, the social progress, the protection of the legal interest and the safety and security are difficult, how to dissolve this dilemma has become a problem all the criminal scholars have to face, which requires us to seek the corresponding examination art to make a value maximization, the most rational choice. The price of the permitting danger theory. The value is to find a balance between the social development and the security value. Through the crime mechanism set up on some kinds of behavior types that have the danger of legal benefit but also indispensable to the social development, it equitable to balance the value impulse between development and security.
Then, where is the theoretical foundation of the permissible permissible crime? First, to clarify a fundamental premise, that is, what is a crime? What is the essence of the crime? The infringement of the legal interest is the infringement or threat to the legal interest, and the result is unworthy of the result, but there is no doubt that there is a consequence of the responsibility of the crime; Crime is a violation of the social norms behind the law, with the unlawful liability of the perpetrator, although it embodies the tendency of unworthy behavior, but the fuzziness of the normative connotation and extension also makes the delimitation of the criminal circle an enlarged risk. Therefore, the theory of the infringement of the legal interest and the standard violation of two yuan has been favored by many scholars and established in the knot. The permissible danger theory in the position of non valence and behavior non valence dualism is also the result of the long stress on the result of the traditional negligence theory that the result of the result on the responsibility of the result theory, which is based on the substantive illegality, effectively modifies the tendency of the excessive expansion of the criminal circle of negligence under the traditional result of the value theory of the traditional result.
The text of the article is divided into five parts. The introduction is mainly about the introduction of the topic, the significance and the purpose of the study. The concluding remarks mainly give a high summary of the content of the full text, and make a prospect for the future of the theory.
The first part: the origin of the permitted danger theory. It mainly explains the theoretical connotation and the development change of the permitting danger. Through the comprehensive interpretation of the basic concepts, characteristics, value function of allowed danger, the theoretical connotation of permitting danger is clarified, and the theoretical context of the permitting danger in today is combed horizontally. Allowing dangerous theories to germinate, establish and evolve, clarify the perils of permitting development and change, and longitudinally clarify the evolutionary trajectory of permitting danger in history.
The second part: the theoretical basis of permitting danger. It mainly explains the theoretical origin and the justification of the permitting danger. Through the investigation of the relationship between the permitting danger and the old and new theory of negligence, the theory of the liability for obligation, the theory of dangerous distribution, the principle of trust, the theory of objective attribution, the theoretical origin of the permitting danger is explored; through the law of interest. At the end of this paper, the argument and the theoretical review of the three views of the objective and the social equivalence, finally clarified the promotion of the theory of social equivalence, and made clear the justification for the permitting danger.
The third part: the perilous system orientation. It mainly discusses the context of the perilous danger in the context of the criminal theory of the German and Japanese civil law and the system of the system under the view of the constitution of the crime in our country. Under the system of the three stratum crime, the attribution of the perilous status is mainly involved in the constitutive requirements, but the illegality resists, and the responsibility is hindered. There are four points of view about the dispute between the offense and the offense; under the system of coupled crime in our country, the judgment of the substantive illegality has been incorporated into all the elements of the constitution, so the disputation of the perilous system of ownership is not like the dispute under the continental law system.
The fourth part: the datum that is allowed to be dangerous. On the basis of reflecting on the views of the relevant scholars at home and abroad, we try to construct the permitting risk judgement datum. In view of the position of the non valence dualism of the result and the behavior, we will give the perpered judgement datum from the two aspects of the legal interest measure and the behavior pattern. We should try to make a benchmark that is as detailed and workable as possible so as to enable the application of permitting danger in practice.
The fifth part: the application of permissible practice. First, from two angles, first, the tendency to expand the scope of the permissible danger is discussed in the light of the current social background. After that, the application of the permissible danger in the field of medical practice is an example, and the application of the medical behavior to be permissible is analyzed. The great practicality of the theory is strongly highlighted by the typical epitome of the permissible danger in the practice of practice, such as the requirement of the permissible danger to medical attention obligations and medical negligence and the applicable limits of the permissible danger in the field of medical practice.
【学位授予单位】:山东大学
【学位级别】:硕士
【学位授予年份】:2014
【分类号】:D914
,
本文编号:2148835
[Abstract]:When the development of science and technology, the social progress, the protection of the legal interest and the safety and security are difficult, how to dissolve this dilemma has become a problem all the criminal scholars have to face, which requires us to seek the corresponding examination art to make a value maximization, the most rational choice. The price of the permitting danger theory. The value is to find a balance between the social development and the security value. Through the crime mechanism set up on some kinds of behavior types that have the danger of legal benefit but also indispensable to the social development, it equitable to balance the value impulse between development and security.
Then, where is the theoretical foundation of the permissible permissible crime? First, to clarify a fundamental premise, that is, what is a crime? What is the essence of the crime? The infringement of the legal interest is the infringement or threat to the legal interest, and the result is unworthy of the result, but there is no doubt that there is a consequence of the responsibility of the crime; Crime is a violation of the social norms behind the law, with the unlawful liability of the perpetrator, although it embodies the tendency of unworthy behavior, but the fuzziness of the normative connotation and extension also makes the delimitation of the criminal circle an enlarged risk. Therefore, the theory of the infringement of the legal interest and the standard violation of two yuan has been favored by many scholars and established in the knot. The permissible danger theory in the position of non valence and behavior non valence dualism is also the result of the long stress on the result of the traditional negligence theory that the result of the result on the responsibility of the result theory, which is based on the substantive illegality, effectively modifies the tendency of the excessive expansion of the criminal circle of negligence under the traditional result of the value theory of the traditional result.
The text of the article is divided into five parts. The introduction is mainly about the introduction of the topic, the significance and the purpose of the study. The concluding remarks mainly give a high summary of the content of the full text, and make a prospect for the future of the theory.
The first part: the origin of the permitted danger theory. It mainly explains the theoretical connotation and the development change of the permitting danger. Through the comprehensive interpretation of the basic concepts, characteristics, value function of allowed danger, the theoretical connotation of permitting danger is clarified, and the theoretical context of the permitting danger in today is combed horizontally. Allowing dangerous theories to germinate, establish and evolve, clarify the perils of permitting development and change, and longitudinally clarify the evolutionary trajectory of permitting danger in history.
The second part: the theoretical basis of permitting danger. It mainly explains the theoretical origin and the justification of the permitting danger. Through the investigation of the relationship between the permitting danger and the old and new theory of negligence, the theory of the liability for obligation, the theory of dangerous distribution, the principle of trust, the theory of objective attribution, the theoretical origin of the permitting danger is explored; through the law of interest. At the end of this paper, the argument and the theoretical review of the three views of the objective and the social equivalence, finally clarified the promotion of the theory of social equivalence, and made clear the justification for the permitting danger.
The third part: the perilous system orientation. It mainly discusses the context of the perilous danger in the context of the criminal theory of the German and Japanese civil law and the system of the system under the view of the constitution of the crime in our country. Under the system of the three stratum crime, the attribution of the perilous status is mainly involved in the constitutive requirements, but the illegality resists, and the responsibility is hindered. There are four points of view about the dispute between the offense and the offense; under the system of coupled crime in our country, the judgment of the substantive illegality has been incorporated into all the elements of the constitution, so the disputation of the perilous system of ownership is not like the dispute under the continental law system.
The fourth part: the datum that is allowed to be dangerous. On the basis of reflecting on the views of the relevant scholars at home and abroad, we try to construct the permitting risk judgement datum. In view of the position of the non valence dualism of the result and the behavior, we will give the perpered judgement datum from the two aspects of the legal interest measure and the behavior pattern. We should try to make a benchmark that is as detailed and workable as possible so as to enable the application of permitting danger in practice.
The fifth part: the application of permissible practice. First, from two angles, first, the tendency to expand the scope of the permissible danger is discussed in the light of the current social background. After that, the application of the permissible danger in the field of medical practice is an example, and the application of the medical behavior to be permissible is analyzed. The great practicality of the theory is strongly highlighted by the typical epitome of the permissible danger in the practice of practice, such as the requirement of the permissible danger to medical attention obligations and medical negligence and the applicable limits of the permissible danger in the field of medical practice.
【学位授予单位】:山东大学
【学位级别】:硕士
【学位授予年份】:2014
【分类号】:D914
,
本文编号:2148835
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