见危不救行为入刑研究

发布时间：2018-08-26 08:50

【摘要】：近年来,“见危不救”事件频频出现,见危不救造成了严重的危害后果和恶劣的社会影响,社会道德底线受到严重冲撞,见危不救应否承担法律责任的问题,在我国引起了强烈关注。学术界有很多法学家们都提出建议见危不救行为应纳入到刑法规制的范畴;在多年的全国人大代表会议上,有多名人大代表多次提出了增设“见危不救罪”的立法议案;早在我国古代很多个朝代都有见危不救的相关立法,而在国外的一些国家如法国、德国、意大利等国家见危不救的立法已相当成熟。针对我国目前没有见危不救刑事立法的现状,而一系列的案例告诉我们,见危不救的“看客”们越来越多,社会道德滑坡和沦丧现象越来越严重,仅仅从道德上来唾骂谴责已不能很好地解决日趋突出的矛盾,再不加用法律手段来规制,中国几千年来的道德文明必将毁掉,这绝不是小事,不容小觑。在此基础上,本文先从一组见危不救的案例引出思考,再从见危不救的涵义入手,分析见危不救入刑的必要性及可行性,通过比较分析法对见危不救罪立法展开研究。本文加上引言共分为五个部分,具体内容如下:首先在引言部分例举了几个十分有代表性的见危不救的案例,引出道德与法律之争,点出有关见危不救在我国刑事立法上属空白区域,提出立法所要面临的问题,确定本文要研究见危不救入刑的主题。正文的第一部分对见危不救行为进行概述,介绍见危不救的定义,见危不救的类型和表现形式及出现的原因,同时介绍我国学者对见危不救是否入刑的不同观点,并提出笔者赞成见危不救入刑的观点。正文第二部分主要是论证见危不救入刑的必要性和可行性,必要性从明确见危不救行为的社会危害性,指出见危不救行为具有普遍性,和现实需要的紧迫性来论证;可行性从法理学中法的价值、法与正义、人权、秩序、法与社会、道德等找到可行的法理依据,再从刑法谦抑性来分析,最后认为司法困局不应成为见危不救的障碍,具有可行性。正文第三部分主要是通过例举的方式介绍我国古代见危不救的立法规定及国外见危不救的立法规定,及我国现行的立法状况,点明见危不救入刑有迹可循,有立法经验借鉴。正文第四部分着重分析见危不救罪的构成要件,分别从主体、主观方面、客体和客观方面四个方面详细分析,并通过借鉴国外立法确定罪名、对比国内相似立法确定法定刑,设计出见危不救罪的完整法条。
[Abstract]:In recent years, there have been frequent incidents of "seeing danger or not saving", which has caused serious harmful consequences and adverse social effects. The bottom line of social morality has been seriously collided, and the question of whether or not to bear legal responsibility for failure to save is a problem. It has aroused strong concern in our country. In academic circles, many jurists have proposed that the act of not rescuing from danger should be included in the scope of criminal law regulation; at the National people's Congress Congress for many years, many deputies to the National people's Congress have put forward several legislative bills to add "see danger not to save crime"; As early as many dynasties in ancient China, there is no rescue legislation, but in some foreign countries such as France, Germany, Italy and other countries to see no rescue legislation has been quite mature. In view of the fact that there is no criminal legislation in our country at present, a series of cases tell us that there are more and more "spectators" who see danger and do not save, and the phenomenon of social moral decline and loss is becoming more and more serious. Just from the moral point of view scolding and denouncing can not solve the increasingly prominent contradiction, no more legal means to regulate, China's thousands of years of moral civilization will be destroyed, this is no small matter, should not be underestimated. On this basis, this paper first from a group of cases of danger not to save the thinking, and then from the meaning of not saving, analysis of the necessity and feasibility of seeing danger not to save the punishment, through comparative analysis of the crime of seeing danger not to save the legislation to begin research. This article plus the introduction is divided into five parts, the specific contents are as follows: first of all, in the introduction, I cite a few representative cases, leading to the moral and legal disputes. This paper points out the blank area in our country's criminal legislation, puts forward the problems to be faced by the legislation, and determines the theme of this paper. The first part of the text summarizes the behavior of seeing danger and not saving, introduces the definition, types, manifestations and causes of the failure to save, and introduces the different views of Chinese scholars on whether to see danger or not. And put forward that the author agreed to see danger do not save the point of view. The second part of the text is mainly to demonstrate the necessity and feasibility of seeing danger and not saving the punishment. The necessity is demonstrated from the social harmfulness of the behavior of seeing danger and not saving, and points out that the act of seeing danger and not saving is universal, and the urgency of reality needs to demonstrate. The feasibility is analyzed from the value of law in jurisprudence, law and justice, human rights, order, law and society, morality and so on, and then analyzed from the modesty of criminal law. It is feasible. The third part of the text mainly introduces the legislative provisions of our country in ancient times and the legislative provisions of foreign countries, and the current legislative situation of our country, and points out that there are signs to be followed and legislative experience to be used for reference. The fourth part of the text focuses on the analysis of the constitutive elements of the crime of failure to save danger, respectively from the subject, subjective, objective and objective aspects of the four aspects of detailed analysis, and through the use of foreign legislation to determine the charges, compared with similar domestic legislation to determine the statutory punishment. Design the complete law that sees danger does not save crime.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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