过失共同犯罪的成立根据研究
发布时间：2018-11-12 08:33
【摘要】：共同犯罪作为刑法总则一个备受关注的话题，历来受到广大刑法学者和法律实务界工作者所热议，而作为共同犯罪的一个焦点，，过失共同犯罪古往今来也引发了大量争议，不论是理论学界还是司法实务操作过程中所产生的争议案件。这从一方面体现了共同犯罪本身有着相当值得讨论的话题，同时也体现了刑法中关于共同犯罪受到关注的程度。是不是承认过失共同犯罪这一问题向大家揭露了如此特征：共同犯罪的复杂性。然而本文的写作初衷并不是去挑战这一特点，而是从某些角度出发进而阐述笔者对过失共同犯罪的理解。在实际生活中许多二人以上共同过失行为造成了危害结果的例子比比皆是，诸如此类具体例子发生后司法机关怎么认定就引起了极大的困惑，这突显了我们国家在立法层面上有待完善以及相关研究的相对不足，这也成为了本文写作的重要突破口。随着研究的不断深入，越来越多的学者和法律工作者主张过失共同犯罪的成立，这在一定程度上冲击了原有的根深蒂固的过失共同行为不能成立共同犯罪的立法与研究。 本文的第一部分主要从相关概念入手，对于过失共同犯罪的有关概念进行分析，从而界定本文的“过失共同犯罪”的内涵和外延，其目的就是为了让本人的论文更具有针对性。 本文的第二部分从相关理论争议着手，笔者对这些争议进行中肯的评价，从而提出自己的主张与看法，结合许多国家对争议的问题在立法上的规定来探讨本文提出的成立根据，接着从有关国家的立法规范剖析过失共同犯罪存在的可能，从而提出自己的理论看法。 本文的第三部分是讨论的焦点，也是最为关键的说理论证。笔者先对“过失共同犯罪的意思联络”作出相应的界定，从而将不同情形下的“意思联络”作出应有的诠释。接着从各个行为人的心理认知方面进行梳理，深化本文对共同过失的应有之意。最后从归责的角度和行为人之间如何承担责任以及侵害法益的特征几个方面来论述其成立的可能性。针对许多出现过的按照我国目前的立法无法解决的案子来佐证笔者提出的观点。 本文的第四部分主要针对我国目前关于共同犯罪的规定进行分析，结合文章论述的过失共同犯罪特点提出笔者完善的建议。
[Abstract]:As a topic of great concern to the general principles of criminal law, joint crime has always been discussed by the vast number of criminal law scholars and legal practitioners. As a focus of joint crime, negligent joint crime has caused a great deal of controversy throughout the ages. Whether theoretical circles or judicial practice in the operation of the process of disputes arising from the case. On the one hand, this shows that the joint crime itself has a topic worth discussing, but also reflects the degree of concern about joint crime in the criminal law. The question of whether to admit a negligent joint crime reveals such a characteristic: the complexity of a joint crime. However, the original intention of this paper is not to challenge this characteristic, but to expound the author's understanding of negligent joint crime from some angles. In real life, many examples of joint negligence by more than two people have resulted in harmful results. After the occurrence of such specific cases, the judicial authorities have caused great confusion as to how to identify them. This highlights our country in the legislative level to be improved and the relative lack of relevant research, which has become an important breakthrough in the writing of this paper. With the deepening of the research, more and more scholars and legal workers advocate the establishment of negligent joint crime, which to some extent impinges on the legislation and research of the original deep-rooted negligent joint act that cannot establish joint crime. The first part of this paper mainly starts with the related concepts, analyzes the related concepts of negligent joint crime, and then defines the connotation and extension of "negligent joint crime" in this paper, the purpose of which is to make my thesis more targeted. The second part of this paper begins with the relevant theoretical disputes, the author gives a fair evaluation of these disputes, and then puts forward his own views and opinions, and discusses the foundation of this article in the light of the legislative provisions of many countries on the issue of disputes. Then it analyzes the possibility of negligent joint crime from the legislative norms of relevant countries, and puts forward its own theoretical views. The third part of this paper is the focus of discussion, but also the most critical reasoning. First, the author defines the meaning of negligent joint crime and interprets it in different situations. Then combing the psychological cognition of each actor, deepen the meaning of joint negligence in this paper. Finally, it discusses the possibility of its establishment from the angle of imputation, how to bear responsibility among the perpetrators and the characteristics of infringing legal interests. In view of many cases which can not be solved according to the current legislation of our country, the author puts forward the point of view. The fourth part of this paper mainly analyzes the current provisions on joint crime in our country, combining with the characteristics of negligent joint crime discussed in this article, the author puts forward some suggestions for perfection.
【学位授予单位】：贵州民族大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.11
本文编号：2326609
[Abstract]:As a topic of great concern to the general principles of criminal law, joint crime has always been discussed by the vast number of criminal law scholars and legal practitioners. As a focus of joint crime, negligent joint crime has caused a great deal of controversy throughout the ages. Whether theoretical circles or judicial practice in the operation of the process of disputes arising from the case. On the one hand, this shows that the joint crime itself has a topic worth discussing, but also reflects the degree of concern about joint crime in the criminal law. The question of whether to admit a negligent joint crime reveals such a characteristic: the complexity of a joint crime. However, the original intention of this paper is not to challenge this characteristic, but to expound the author's understanding of negligent joint crime from some angles. In real life, many examples of joint negligence by more than two people have resulted in harmful results. After the occurrence of such specific cases, the judicial authorities have caused great confusion as to how to identify them. This highlights our country in the legislative level to be improved and the relative lack of relevant research, which has become an important breakthrough in the writing of this paper. With the deepening of the research, more and more scholars and legal workers advocate the establishment of negligent joint crime, which to some extent impinges on the legislation and research of the original deep-rooted negligent joint act that cannot establish joint crime. The first part of this paper mainly starts with the related concepts, analyzes the related concepts of negligent joint crime, and then defines the connotation and extension of "negligent joint crime" in this paper, the purpose of which is to make my thesis more targeted. The second part of this paper begins with the relevant theoretical disputes, the author gives a fair evaluation of these disputes, and then puts forward his own views and opinions, and discusses the foundation of this article in the light of the legislative provisions of many countries on the issue of disputes. Then it analyzes the possibility of negligent joint crime from the legislative norms of relevant countries, and puts forward its own theoretical views. The third part of this paper is the focus of discussion, but also the most critical reasoning. First, the author defines the meaning of negligent joint crime and interprets it in different situations. Then combing the psychological cognition of each actor, deepen the meaning of joint negligence in this paper. Finally, it discusses the possibility of its establishment from the angle of imputation, how to bear responsibility among the perpetrators and the characteristics of infringing legal interests. In view of many cases which can not be solved according to the current legislation of our country, the author puts forward the point of view. The fourth part of this paper mainly analyzes the current provisions on joint crime in our country, combining with the characteristics of negligent joint crime discussed in this article, the author puts forward some suggestions for perfection.
【学位授予单位】：贵州民族大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.11
本文编号：2326609
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