刑法上信赖原则研究
发布时间：2019-01-26 15:36
【摘要】：随着社会的发展，一些对社会有用但同时具有一定危险性的行业产生。近些年来，这些行业领域的过失犯罪，尤其是业务过失犯罪越来越多。一方面，处罚业务过失犯罪可以对这些行业的从业人员起到良好的警示作用，，预防许多安全事故的发生。但是另一方面，业务犯罪的成立范围过于广泛将使得这些行业的从业人员背负过重的负担，从而不利于这些行业的发展与进步。为此，我们有必要用信赖原则来限制一部分过失犯罪的成立，从而使这些行业的发展得到解放，从而使其更大地促进社会的发展。 信赖原则产生于1935年的德国，随后在日本、瑞士、奥地利等国家得到适用。信赖原则在产生之初主要适用于交通事故领域，现已扩大适用到医疗事故，监督过失等领域。信赖原则的产生本质上是产业资本主义发展的要求。 信赖原则以社会相当性理论、允许的危险理论及危险分配理论为基础，在具备一定的社会客观条件及以“信赖”为前提的主观条件的情形下得以适用。但是在具备限制条件的情形下信赖原则不得适用。过失理论经历了从旧过失论到新过失论再到新新过失论的发展过程。信赖原则是在新过失论的基础上通过排除行为人的预见义务以及在危险状态中保持谨慎态度的义务来达到限制过失犯罪的成立范围的目的。 我国现行法律中没有信赖原则的自觉适用，但仍有部分法律法规体现了信赖原则的精神。要使信赖原则在我国得到适用就应借鉴德、日刑法中的信赖原则并将之引入我国刑法。通过刑事司法解释将信赖原则加以适用是一个可行的选择。
[Abstract]:With the development of society, some industries which are useful to the society but have certain danger at the same time come into being. In recent years, there are more and more negligent crimes in these industries, especially in business negligence. On the one hand, the punishment of negligent business crime can serve as a good warning to the employees in these industries and prevent many safety accidents. But on the other hand, the establishment of the scope of business crime will make the practitioners of these industries bear an excessive burden, which is not conducive to the development and progress of these industries. Therefore, it is necessary for us to limit the establishment of some negligent crimes with the principle of trust, so as to liberate the development of these industries and promote the development of society. The principle of trust originated in Germany in 1935 and then applied in Japan, Switzerland, Austria and other countries. The principle of reliance was mainly applied to traffic accidents at the beginning of its existence, and has been extended to the fields of medical malpractice and supervision of negligence. The principle of reliance is essentially the requirement of the development of industrial capitalism. The principle of trust is based on the theory of social equivalence, the theory of permissible danger and the theory of risk distribution, and can be applied under certain social objective conditions and subjective conditions based on the premise of "trust". However, the principle of trust may not be applied in the case of restricted conditions. The theory of negligence has experienced the development from the old fault theory to the new fault theory and then to the new fault theory. On the basis of the new negligence theory, the principle of trust is to limit the scope of the establishment of negligent crime by excluding the actor's obligation to foresee and maintaining a cautious attitude in a dangerous state. There is no conscious application of the principle of trust in the current law of our country, but some laws and regulations still embody the spirit of the principle of trust. In order to apply the principle of trust in our country, we should draw lessons from the principle of trust in the criminal law of Germany and Japan and introduce it into our criminal law. It is a feasible choice to apply the principle of reliance through criminal judicial interpretation.
【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
本文编号：2415628
[Abstract]:With the development of society, some industries which are useful to the society but have certain danger at the same time come into being. In recent years, there are more and more negligent crimes in these industries, especially in business negligence. On the one hand, the punishment of negligent business crime can serve as a good warning to the employees in these industries and prevent many safety accidents. But on the other hand, the establishment of the scope of business crime will make the practitioners of these industries bear an excessive burden, which is not conducive to the development and progress of these industries. Therefore, it is necessary for us to limit the establishment of some negligent crimes with the principle of trust, so as to liberate the development of these industries and promote the development of society. The principle of trust originated in Germany in 1935 and then applied in Japan, Switzerland, Austria and other countries. The principle of reliance was mainly applied to traffic accidents at the beginning of its existence, and has been extended to the fields of medical malpractice and supervision of negligence. The principle of reliance is essentially the requirement of the development of industrial capitalism. The principle of trust is based on the theory of social equivalence, the theory of permissible danger and the theory of risk distribution, and can be applied under certain social objective conditions and subjective conditions based on the premise of "trust". However, the principle of trust may not be applied in the case of restricted conditions. The theory of negligence has experienced the development from the old fault theory to the new fault theory and then to the new fault theory. On the basis of the new negligence theory, the principle of trust is to limit the scope of the establishment of negligent crime by excluding the actor's obligation to foresee and maintaining a cautious attitude in a dangerous state. There is no conscious application of the principle of trust in the current law of our country, but some laws and regulations still embody the spirit of the principle of trust. In order to apply the principle of trust in our country, we should draw lessons from the principle of trust in the criminal law of Germany and Japan and introduce it into our criminal law. It is a feasible choice to apply the principle of reliance through criminal judicial interpretation.
【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
【参考文献】
相关期刊论文 前3条
1 林亚刚;试论危险分配与信赖原则在犯罪过失中的运用[J];法律科学.西北政法学院学报;1999年02期
2 毛元学;;信赖原则在交通肇事罪中的适用[J];法学杂志;2009年06期
3 刘跃挺;;论刑法中的信赖原则[J];西南交通大学学报(社会科学版);2009年05期
本文编号：2415628
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