被迫行为比较研究

发布时间：2018-11-17 21:06

【摘要】：被迫行为是指行为人在心理上受到严重胁迫产生恐惧的情况下，不自愿实施的犯罪行为。与一般意义上的犯罪行为不同，被迫行为的行为人在行为当时意志自由受到了胁迫的影响，因而不能简单地对其作出否定性法律评价或进行刑事处罚。总体上而言，被迫行为理论反映了法律与人性的冲突，是法律屈服于人性的一种表现。在英美法系国家，将被迫行为称为胁迫，是一种区别于紧急避险的独立辩护事由。在大陆法系刑法中，各国家对被迫行为的规定不尽相同，有些国家将被迫行为规定为独立的责任阻却事由，如韩国；有的国家则将被迫行为视为紧急避险的一种类型，如德国；还有的国家刑法中没有对被迫行为作出明确规定，，而是将其作为一项超法规的责任阻却事由存在，如日本。我国刑法中并没有被迫行为这一概念，但我国学者对被迫行为的理论研究却已日渐增多。理论上关于被迫行为性质、被迫行为与紧急避险及胁从犯关系的论文并不鲜见。本文首先立足于对两大法系的被迫行为理论进行比较研究，分析被迫行为在两大法系犯罪构成理论中的体系地位，并在此基础上，试图探讨被迫行为理论对我国刑法的借鉴意义。首先，本文介绍被迫行为的概念范畴，对被迫行为进行了概括性论述，其中包括被迫行为的概念限界、性质、及理论基础等。法律上的被迫行为，一般是指行为人因心理受到暴力或暴力威胁的压迫，在迫不得已的情况下按照强迫者的要求或意图而实施的侵害第三者的行为。其次，本文集中论述两大法系被迫行为理论的异同。该部分内容的论述主要分三个层面进行。第一层面论述大陆法系中的被迫行为。大陆法系采用的是构成要件该当性、违法性、有责性三阶层的犯罪构成体系。虽然各国刑法的规定不尽相同，但在这一犯罪构成体系中，被迫行为属于责任阻却事由。第二层面论述英美法体系中的被迫行为。被迫行为理论在英美法系刑法中具有独立的法律地位，符合法律规定的被迫行为是一般辩护理由之一，若被告人的行为符合了被迫行为的法定要件，则被告人可无罪释放。第三层面分析两大法系被迫行为的构成要件，并在此基础上评析两大法系的被迫行为理论。由于犯罪构成体系的不同，大陆法系将被迫行为视为责任阻却事由，而在英美法系中被迫行为是独立的抗辩事由。但从宏观上考察两大法系犯罪构成体系不难发现，两者之间存在异曲同工之妙，即都是从犯罪构成、违法性和责任三个方面来对一个行为予以考察的。最后，本文试图对被迫行为理论与我国的紧急避险理论、胁从犯理论进行比较分析。被迫行为在我国刑法体系中不是独立的理论范畴，但是被迫行为的概念与我国的紧急避险和胁从犯的理论存在交叉相似的内容。我国学者对于被迫行为与胁从犯理论的比较研究也日渐增多，有学者指出胁从犯对我国的共犯理论造成了混乱，也有学者对此持反对意见。该部分试图分析被迫行为与紧急避险及胁从犯的理论关系，并在此基础上指出国外被迫行为理论的借鉴价值。
[Abstract]:Forced behavior is a criminal act that the actor is not voluntarily committed in the case of fear of serious stress in the mind. In contrast to the criminal act in general sense, the perpetrator of the forced behavior is free to be affected by the coercion at the time of the act, so that the negative legal evaluation or the criminal punishment cannot be made simply. Generally speaking, the theory of forced behavior reflects the conflict between the law and the human nature, and is a manifestation of the law's submission to the human nature. In the Anglo-American law system, the forced behavior is called coercion, which is a separate defence case that is different from the emergency hedge. In the criminal law of the continental law system, the rules of the forced behavior of the countries are different, some countries will be forced to act as independent responsibility, such as Korea; some of the countries will be forced to act as one of the types of emergency hedge, such as Germany; There is no explicit provision for forced acts in the national criminal law, but is the subject of responsibility for an ultra-rule, such as Japan. There is no forced behavior in the criminal law of our country, but the theoretical study of the forced behavior of Chinese scholars has been increasing. In theory, the paper about the nature of the forced behavior, the forced behavior and the urgent need to avoid the relationship between the forced behavior and the slave-offender relationship is not uncommon. This paper is based on the comparative study of the forced behavior theory of the two legal systems, and analyzes the system status of the forced behavior in the two law system constitution theory, and on this basis, tries to explore the reference significance of the forced behavior theory to the criminal law of our country. First, this paper introduces the concept category of forced behavior, and gives a general discussion on the forced behavior, including the concept, the nature and the theoretical basis of the forced behavior. a forced act of a law, generally an act of oppression by a person who is subjected to a threat of violence or violence, which, in the last resort, is committed against a third party in accordance with the requirements or intent of the force. Second, this paper focuses on the forced behavior of the two legal systems. The content of this part is divided into three parts: At the first level, we discuss the civil law system. The forced behavior of the civil law system, which is used by the civil law system, is the three-class crime of the existence, the illegality and the responsibility. Crime constitutes a system. Although the provisions of national criminal law are different, it is the responsibility of the forced behavior in the system of crime. On the subject of any resistance, the second aspect of the Anglo-American law system The forced behavior theory has an independent legal status in the criminal law of the common law system, and the forced behavior according to the law is one of the general defense reasons. If the behavior of the defendant is in accordance with the legal requirements of the forced behavior, the defendant The third aspect analyses the constituent elements of the forced behavior of the two legal systems, and then evaluates the two legal systems. The theory of forced behavior. Due to the different constitution system, the civil law system will be forced to act as the subject of responsibility, and the forced behavior in the Anglo-American law system is independent. However, it is difficult to find out that the two law system constitution system is not difficult to find, that is, there is a difference between the two legal systems, that is, from the three aspects of the crime constitution, the illegality and the responsibility, In the end, this paper tries to study the theory of forced behavior and the theory of emergency hedge in China. The theory carries on the comparative analysis. The forced behavior is not the independent theory category in the criminal law system of our country, but the concept of forced behavior is the same as that of our country's emergency hedge and the criminal's theory. In the cross-similar content, the comparative study of Chinese scholars on the theory of the forced behavior and the crime of the accomplice has also increased, and some scholars have pointed out that the crime of the accomplice has caused the confusion and the study of the theory of the accomplice in our country. This part tries to analyze the theoretical relation between the forced behavior and the urgent need to avoid the crime, and on the basis of this, it points out that the foreign forces are forced to go
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914

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