论普通过失犯罪的注意义务
发布时间：2018-08-02 11:12
【摘要】：芷刑法理论中,根据注意义务的不同可以将过失犯罪分为普通过失犯罪和业务过失犯罪。虽然有关普通过失犯罪的法条规定在《刑法》中所占数量不多,但由于其所涉及的范围、主体等比较广泛,因此对其注意义务的研究是必不可少的。 注意义务是认定普通过失犯罪的核心规范要素,是普通过失犯罪的本质。在认定普通过失犯罪的注意义务时应从两方面着手：—、客观的注意义务内容；二、行为人的主观注意能力。在普通过失犯罪中,行为人违反的是一般注意义务,其来源具有广泛性,为了不限缩人们的正常社会活动,对注意义务内容的限定是必要的。同时,作为注意义务的认定基础,行为人的注意能力与违法性认识可能性和刑法中的因果联系有着天然的联系,需要将三者同时考虑来全面分析行为人的注意能力。事物的两面性决定了存在阻碍注意义务认定的因素,即信赖原则。在适用信赖原则来否认行为人注意义务的存在时,要区分何为“信赖”、何为“信任”,不能将二者混淆,否则容易破坏人际之间的日常交往。如此,才能全面而清楚地分析普通过失犯罪中的注意义务问题。
[Abstract]:In the theory of criminal law, according to the difference of duty of care, negligent crime can be divided into common negligent crime and professional negligent crime. Although the provisions of the law on common negligence crime are not much in the Criminal Law, it is necessary to study its duty of care because of its extensive scope and subject. Duty of care is the core normative element of common negligence crime and the essence of common negligence crime. In determining the duty of care of common negligence crime, we should start from two aspects: -, objective content of duty of care; second, the subjective attention ability of the perpetrator. In the common negligence crime, the perpetrator violates the general duty of care, and its source is extensive. In order to limit people's normal social activities, it is necessary to limit the content of the duty of care. At the same time, as the basis of the recognition of duty of care, the attention ability of the perpetrator has a natural connection with the possibility of illegal cognition and the causal link in the criminal law, so it is necessary to comprehensively analyze the attention ability of the actor at the same time. The duality of things determines the existence of factors hindering the duty of care, that is, the principle of trust. When the principle of trust is applied to deny the existence of the duty of care of the perpetrator, we should distinguish what is "trust" and "trust". We should not confuse the two principles, otherwise, it is easy to destroy the daily communication between people. In this way, the duty of care in common negligence crime can be analyzed comprehensively and clearly.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
本文编号：2159244
[Abstract]:In the theory of criminal law, according to the difference of duty of care, negligent crime can be divided into common negligent crime and professional negligent crime. Although the provisions of the law on common negligence crime are not much in the Criminal Law, it is necessary to study its duty of care because of its extensive scope and subject. Duty of care is the core normative element of common negligence crime and the essence of common negligence crime. In determining the duty of care of common negligence crime, we should start from two aspects: -, objective content of duty of care; second, the subjective attention ability of the perpetrator. In the common negligence crime, the perpetrator violates the general duty of care, and its source is extensive. In order to limit people's normal social activities, it is necessary to limit the content of the duty of care. At the same time, as the basis of the recognition of duty of care, the attention ability of the perpetrator has a natural connection with the possibility of illegal cognition and the causal link in the criminal law, so it is necessary to comprehensively analyze the attention ability of the actor at the same time. The duality of things determines the existence of factors hindering the duty of care, that is, the principle of trust. When the principle of trust is applied to deny the existence of the duty of care of the perpetrator, we should distinguish what is "trust" and "trust". We should not confuse the two principles, otherwise, it is easy to destroy the daily communication between people. In this way, the duty of care in common negligence crime can be analyzed comprehensively and clearly.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
【参考文献】
相关期刊论文 前1条
1 黄瑛琦;;信赖原则研究[J];刑法论丛;2009年03期
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