论“船长见危不救罪”的增设
发布时间：2018-10-09 09:06
【摘要】：众所周知,海上的生产作业相较于陆上作业有很大差别,当船舶在大洋航行发生险情时,等待公权力机关的救援往往具有滞后性,最有效的救助还是来自于过往的船只。虽然相关国际公约和我国法律已经明确规定船长有海上人命救助的义务,但大量见危不救的案例仍在海上频频发生,我国法律对船长见危不救行为的规制一概采取行政处罚的制裁措施,仅处罚金和暂扣适任证书的惩罚使得船长见危不救行为得不到有效打击,所带来的海上人命安全威胁问题也愈加突出。船长见危不救行为侵犯了海上人命安全的法益,具有严重的社会危害性,但船长违反法定的海上救助义务是否构成犯罪,构成什么样的犯罪,处以什么样的刑罚,我国刑事立法一概没有规定。立法的缺失必然导致了司法的无奈,在实际工作中,由于没有关于船长见危不救责任的统一认定,相关法律适用不明确,执法人员在责任追究方面存在较大差异,这导致同案不同判的司法不公状况。基于此,增设"船长见危不救罪"对遇险船只的救助和海上人命救援具有重大意义。本文论"船长见危不救罪"的增设除前言以外共分为四部分。第一章是文章的概述部分,主要介绍了船长见危不救犯罪的基本理论。首先,笔者界定了"见危不救"的含义,揭示了见危不救行为性质是不作为。其次,从船长的权力义务和法律地位出发,明确船长在公法上的权力与义务,阐述船长这一主体特殊的法律地位。第二章从船长见危不救行为具有严重的社会危害性,而我国现有法律控制不力等方面分析设立"船长见危不救罪"的必要性以及从国外立法例和我国司法实践对该罪的认同等方面阐述我国设立此罪的可行性。第三章笔者从犯罪构成的四要件分析"船长见危不救罪"的犯罪构成并对船长见危不救罪与非罪、此罪与相近罪名的界限进行区分。第四章详细地对该罪的刑罚设置予以阐述,同时与我国最新出台的《刑法修正案(九)》相结合,创新地提出对该罪主体设置"从业禁止"的措施,使得"船长见危不救罪"的设置更合理完善,从而填补有关船长见危不救的刑事责任空白。
[Abstract]:As we all know, there is a great difference between offshore production and onshore operations. When ships are in danger of sailing in the ocean, waiting for the rescue of public authorities is often lagging behind, and the most effective rescue comes from passing ships. Although the relevant international conventions and Chinese laws have clearly stipulated that the captain has the obligation to save lives at sea, a large number of cases of failure to save at sea still occur frequently at sea. The laws of our country regulate the behavior of the captain who sees danger and does not save. The punishment of only fine and withholding certificate makes it impossible for the captain to deal an effective blow to the act of failing to save the captain when he sees danger. The threat to the safety of life at sea has become increasingly prominent. When the captain sees that the act of not saving at sea infringes the legal interests of the safety of human life at sea and has serious social harmfulness, however, whether the captain violates the legal obligation of salvage at sea constitutes a crime, what kind of crime is constituted, and what kind of penalty is imposed, There is nothing in our criminal legislation. The lack of legislation will inevitably lead to judicial helplessness. In practical work, there is a great difference in the investigation of liability of law enforcement personnel because of the lack of a unified recognition of the captain's responsibility to see danger and no rescue, and the lack of clear application of relevant laws. This led to a miscarriage of justice in the same case. Therefore, it is of great significance to the rescue of ships in distress and the rescue of life at sea. There are four parts in addition to the foreword. The first chapter is an overview of the article, mainly introduces the captain of the basic theory of the crime. First of all, the author defines the meaning of "seeing danger and not saving", and reveals that the nature of behavior is inaction. Secondly, from the point of view of the captain's power, duty and legal status, the author clarifies the captain's power and duty in public law, and expounds the special legal status of the master as the subject. The second chapter sees from the captain that the act of not rescuing has serious social harmfulness. However, the necessity of setting up the crime of "captain without rescue" is analyzed from the aspects of weak legal control in our country and the feasibility of establishing this crime in our country from the aspects of foreign legislation and the recognition of this crime in our country's judicial practice. In the third chapter, the author analyzes the crime constitution of "the captain does not rescue the crime" from the four elements of the constitution of the crime, and distinguishes the crime and the similar charge between the crime and the non-crime of the captain. The fourth chapter elaborates the penalty setting of the crime in detail, and combines with the latest Criminal Law Amendment (9), puts forward the measures of "prohibition of employment" for the main body of the crime. It makes the setting of "Captain see danger not save crime" more reasonable and perfect, thus fill in the blank of criminal responsibility of captain who sees danger and does not save.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
[Abstract]:As we all know, there is a great difference between offshore production and onshore operations. When ships are in danger of sailing in the ocean, waiting for the rescue of public authorities is often lagging behind, and the most effective rescue comes from passing ships. Although the relevant international conventions and Chinese laws have clearly stipulated that the captain has the obligation to save lives at sea, a large number of cases of failure to save at sea still occur frequently at sea. The laws of our country regulate the behavior of the captain who sees danger and does not save. The punishment of only fine and withholding certificate makes it impossible for the captain to deal an effective blow to the act of failing to save the captain when he sees danger. The threat to the safety of life at sea has become increasingly prominent. When the captain sees that the act of not saving at sea infringes the legal interests of the safety of human life at sea and has serious social harmfulness, however, whether the captain violates the legal obligation of salvage at sea constitutes a crime, what kind of crime is constituted, and what kind of penalty is imposed, There is nothing in our criminal legislation. The lack of legislation will inevitably lead to judicial helplessness. In practical work, there is a great difference in the investigation of liability of law enforcement personnel because of the lack of a unified recognition of the captain's responsibility to see danger and no rescue, and the lack of clear application of relevant laws. This led to a miscarriage of justice in the same case. Therefore, it is of great significance to the rescue of ships in distress and the rescue of life at sea. There are four parts in addition to the foreword. The first chapter is an overview of the article, mainly introduces the captain of the basic theory of the crime. First of all, the author defines the meaning of "seeing danger and not saving", and reveals that the nature of behavior is inaction. Secondly, from the point of view of the captain's power, duty and legal status, the author clarifies the captain's power and duty in public law, and expounds the special legal status of the master as the subject. The second chapter sees from the captain that the act of not rescuing has serious social harmfulness. However, the necessity of setting up the crime of "captain without rescue" is analyzed from the aspects of weak legal control in our country and the feasibility of establishing this crime in our country from the aspects of foreign legislation and the recognition of this crime in our country's judicial practice. In the third chapter, the author analyzes the crime constitution of "the captain does not rescue the crime" from the four elements of the constitution of the crime, and distinguishes the crime and the similar charge between the crime and the non-crime of the captain. The fourth chapter elaborates the penalty setting of the crime in detail, and combines with the latest Criminal Law Amendment (9), puts forward the measures of "prohibition of employment" for the main body of the crime. It makes the setting of "Captain see danger not save crime" more reasonable and perfect, thus fill in the blank of criminal responsibility of captain who sees danger and does not save.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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