刑法中中立帮助行为的可罚性研究
发布时间：2018-08-18 14:17
【摘要】：社会分工的日益精细与人们之间的联系日益紧密,使得处于正常职务业务范围内的日常行为,不可避免与犯罪相牵扯,可能会因为对犯罪行为产生作用力并与最终的犯罪结果具有因果关系而落入"帮助行为"的范畴,这类行为在刑法上被称为中立帮助行为。如果行为人在主观上认识到了正犯的意图,则至少可以认定为间接故意。而客观层面行为间接引起结果,与结果之间具备因果性,因而将其作为帮助犯进行处罚似乎理所当然。但是行为本身的"中立"特性使得有必要对其区别对待,因为不加区分的、机械的把日常交往中的行为简单归为刑法中的支持帮助行为,会使得刑法触角过度延伸,不当限制公民一般性的行动自由。这也并非当然性的排除帮助犯的成立,因为一味的放任此类行为并否定其违法性,也会导致法益保护的不周延,产生处罚的空隙。因此需要进一步判断哪些中立帮助行为应当给予刑法上的否定评价。全文共分为四个部分。中立帮助行为理论的提出是抑制刑法扩张倾向的产物,此类行为刑事处罚标准的明确化,是平衡犯罪风险防控和保障社会行动自由两种价值的需要,因此有必要对此类行为进行系统化研究。而明确在何种程度上依据何种标准对其进行刑法规制,是中立帮助行为研究的主要问题。对中立帮助行为的解读需要明确"中立"、"帮助"的含义。中立帮助行为自身具有日常性、反复性、片面帮助性等特征,从而与中立行为、帮助行为相区别。现阶段刑法学界的争论焦点在于如何限制处罚,而我国刑事立法和司法欠缺对此类行为的问题意识和系统化梳理。帮助行为的处罚依据解决的是为何可以将刑法的触角扩展到引起法益侵害结果的实行行为之外的行为,这也是划定中立帮助行为可罚范围的前提和基础。其中,因果共犯论着眼于共犯与法益侵害之间的因果关系,在限制中立帮助行为的处罚范围方面更有优势。而对于如何具体限制对中立帮助行为的处罚,综合现有域外以及我国台湾、大陆学者提出的观点,主要有主观、客观和综合三种路径,但在各路径中所提出的具体理论依据有所差别。在综合考量、借鉴学者们的观点的基础上,对中立帮助行为进行归责应当遵循先客观后主观的顺序。在客观层面依据客观归责标准判断中立帮助行为是否升高并实现了不被法律允许的风险,在主观层面判断行为人是否具有帮助故意。结合实践中的典型中立帮助行为来看,应当严格限制对中立帮助行为的处罚,只在特殊情况下,中立帮助行为因主观和客观方面丧失中立性而以帮助犯论处。
[Abstract]:The increasingly fine division of labor in society and the increasingly close ties between people make the daily behavior within the scope of normal duties and business inevitable to be involved in crime. It may fall into the category of "aiding act" because of exerting force on the criminal act and having causality with the final criminal result, which is called neutral aiding act in criminal law. If the perpetrator realizes the intention of the principal offender subjectively, it can at least be regarded as indirect intention. But the objective level behavior indirectly causes the result, and the result has the causality, therefore it seems natural to punish as the aiding offender. But the "neutral" nature of the act itself makes it necessary to treat it differently, because, without distinction, the mechanical categorization of the behavior in daily communication as a supporting and aiding act in criminal law can lead to an excessive extension of the criminal law's tentacles. Undue restrictions on citizens' general freedom of movement. This is not a natural exclusion to help the establishment of offenders, because blindly allowing this kind of behavior and negating its illegality, will also lead to inadequate legal protection, resulting in a gap in punishment. Therefore, it is necessary to further judge which neutral aiding actions should be evaluated negatively in criminal law. The full text is divided into four parts. The theory of neutral helping behavior is the product of restraining the tendency of expanding criminal law. The clear standard of criminal punishment for this kind of behavior is the need to balance the value of crime risk prevention and control and to guarantee the freedom of social action. Therefore, it is necessary to systematize the study of this kind of behavior. It is the main problem in the study of neutral help behavior to make clear on which standard to regulate the criminal law. The interpretation of neutral help needs to clarify the meaning of "neutrality" and "help". Neutral helping behavior itself has the characteristics of daily, repetition and unilateral help, so it is different from neutral behavior and helping behavior. At present, the focus of the debate in the field of criminal law is how to restrict punishment, but our criminal legislation and judicature lack the awareness and systematization of this kind of behavior. The punishment of aiding behavior is based on why the criminal law can extend the tentacles of criminal law to acts other than those that cause the result of legal interests infringement, which is also the premise and foundation of delimiting the range of punishment for neutral helping acts. Among them, the theory of causality accomplice focuses on the causal relationship between accomplice and legal interest infringement, and has more advantages in limiting the scope of punishment for neutral aiding behavior. As to how to specifically restrict the punishment of neutral helping behavior, synthesizing the existing foreign views as well as the views put forward by scholars from Taiwan and mainland China, there are mainly three ways: subjective, objective and comprehensive. However, the specific theoretical basis proposed in each path is different. On the basis of comprehensive consideration and drawing lessons from scholars' views, the imputation of neutral help behavior should follow the order of objectivity and subjectivity. According to the objective imputation criterion, the author judges whether the neutral help behavior is elevated and realizes the risk which is not permitted by the law, and whether the actor has the aid intention at the subjective level. In combination with the typical neutral help behavior in practice, the punishment of neutral help behavior should be strictly limited, and only under special circumstances, neutral help behavior should be punished because of the loss of neutrality in subjective and objective aspects.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D914
本文编号：2189729
[Abstract]:The increasingly fine division of labor in society and the increasingly close ties between people make the daily behavior within the scope of normal duties and business inevitable to be involved in crime. It may fall into the category of "aiding act" because of exerting force on the criminal act and having causality with the final criminal result, which is called neutral aiding act in criminal law. If the perpetrator realizes the intention of the principal offender subjectively, it can at least be regarded as indirect intention. But the objective level behavior indirectly causes the result, and the result has the causality, therefore it seems natural to punish as the aiding offender. But the "neutral" nature of the act itself makes it necessary to treat it differently, because, without distinction, the mechanical categorization of the behavior in daily communication as a supporting and aiding act in criminal law can lead to an excessive extension of the criminal law's tentacles. Undue restrictions on citizens' general freedom of movement. This is not a natural exclusion to help the establishment of offenders, because blindly allowing this kind of behavior and negating its illegality, will also lead to inadequate legal protection, resulting in a gap in punishment. Therefore, it is necessary to further judge which neutral aiding actions should be evaluated negatively in criminal law. The full text is divided into four parts. The theory of neutral helping behavior is the product of restraining the tendency of expanding criminal law. The clear standard of criminal punishment for this kind of behavior is the need to balance the value of crime risk prevention and control and to guarantee the freedom of social action. Therefore, it is necessary to systematize the study of this kind of behavior. It is the main problem in the study of neutral help behavior to make clear on which standard to regulate the criminal law. The interpretation of neutral help needs to clarify the meaning of "neutrality" and "help". Neutral helping behavior itself has the characteristics of daily, repetition and unilateral help, so it is different from neutral behavior and helping behavior. At present, the focus of the debate in the field of criminal law is how to restrict punishment, but our criminal legislation and judicature lack the awareness and systematization of this kind of behavior. The punishment of aiding behavior is based on why the criminal law can extend the tentacles of criminal law to acts other than those that cause the result of legal interests infringement, which is also the premise and foundation of delimiting the range of punishment for neutral helping acts. Among them, the theory of causality accomplice focuses on the causal relationship between accomplice and legal interest infringement, and has more advantages in limiting the scope of punishment for neutral aiding behavior. As to how to specifically restrict the punishment of neutral helping behavior, synthesizing the existing foreign views as well as the views put forward by scholars from Taiwan and mainland China, there are mainly three ways: subjective, objective and comprehensive. However, the specific theoretical basis proposed in each path is different. On the basis of comprehensive consideration and drawing lessons from scholars' views, the imputation of neutral help behavior should follow the order of objectivity and subjectivity. According to the objective imputation criterion, the author judges whether the neutral help behavior is elevated and realizes the risk which is not permitted by the law, and whether the actor has the aid intention at the subjective level. In combination with the typical neutral help behavior in practice, the punishment of neutral help behavior should be strictly limited, and only under special circumstances, neutral help behavior should be punished because of the loss of neutrality in subjective and objective aspects.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D914
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相关期刊论文 前2条
1 张明楷;;论帮助信息网络犯罪活动罪[J];政治与法律;2016年02期
2 李怀胜;;中性业务行为的意义、标准及立场选择[J];河南司法警官职业学院学报;2010年04期
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