论不作为犯罪的因果关系
发布时间：2018-10-16 22:06
【摘要】：不作为与危害结果之间的因果关系问题,一直都是刑法因果关系研究中争议的热点问题。不作为是行为人对其所负有的某种特定的法律义务的不履行,正是由于其能够履行而不履行的消极不作为,最终导致了本来可以避免的危害结果的出现。以不作为的方式构成的犯罪被称为不作为犯罪,其一般外在表现为消极的不作为,对可能发生的危害结果的故意或者漠视。不作为犯罪同时又可以分为纯正不作为犯罪与不纯正不作为犯罪。通常认为,行为人以不作为的方式构成的刑法分则条文明确规定以不作为方式构成的犯罪是纯正不作为犯,也有学者称之为真正不作为犯。行为人以不作为的方式构成刑法分则条文明确规定以作为方式构成的犯罪,客观上又同时导致法定实害结果的发生或者法定的具体危险的出现的是不纯正不作为犯,也叫不真正不作为犯。 刑法因果关系不是行为人承担责任的必然条件,但却是行为人承担刑事责任的客观基础,对于不作为犯罪因果关系来说,同样是不作为犯罪人承担刑事责任的客观基础,因而不作为犯罪因果关系的认定对于追究不作为犯罪有重要的现实意义。关于不作为犯罪的行为性、不作为犯罪的义务来源以及不作为犯罪的因果关系,在刑法学说史上曾经有过很长一段时间的争论,时至今日仍然不能得出令人信服的权威性结论。本文尝试从以下几个部分对不作为犯罪的因果关系的问题作一探讨。 第一部分,笔者对不作为犯罪因果关系的相关学说分国外和国内两部分进行了详细的论述和归纳,从理论学说上为深入研究和把握不作为犯罪的因果关系做了充足的准备。对国外不作为犯罪因果关系的学说按对不作为犯罪因果关系的承认与否分为肯定说和否定说两大派,其中肯定说中根据对不作为犯罪因果关系的论证方法的不同又分为他行行为说、先行行为说、干涉说、作为义务违反说、防止可能性说、他因利用说、保证人说。国内不作为犯罪因果关系学说大体上也是分为积极说和消极说两种观点。其中积极说中根据对不作为犯罪的原因力解释的不同又分为作为义务违反说、防果可能说、转辙说；消极说中根据具体的论证理由的不同,也分为拟制说和条件说两种学说。 第二部分,笔者详细论述了不作为犯罪因果关系区别于作为犯罪因果关系的特点。不作为犯罪的因果关系与作为犯罪的因果关系都具有因果关系的顺序性、多样性及客观存在性的等特征,但同时不作为犯罪因果关系在原因、原因力、内部结构等方面都不同于作为犯罪因果关系而具有自身的特殊性。 第三部分,从原理性层面上对不作为犯罪因果关系进行分析和探讨,并对不作为犯罪因果关系的认定和判断进行了详细的论述。不作为犯罪因果关系的起果性原理和防果破坏性原理已为大多数学者所承认,对原理的探讨和分析有助于不作为犯罪因果关系的理解和现实中的具体认定。对于不作为犯罪因果关系的认定,笔者认为应该区分纯正不作为犯罪和不纯正不作为犯罪,对纯正不作为犯罪因果关系的认定应采用作为义务违反说加期待说；对不纯正不作为犯罪因果关系的认定应采用干涉说加期待说。 第四部分,通过以上三部分对不作为犯罪因果关系的论述,结合现实中最具有争议的不作为行为——见危不救,并对其区分不同类型以具体分析其各自的不作为因果关系,见危不救的不作为与危害结果之间具有因果关系的,该见危不救就构成不纯正不作为犯罪；反之,则不承担刑事责任。
[Abstract]:As a cause-and-effect relationship with the result of harm, it has always been a hot issue in the research of causality of criminal law. Failure to perform as a specific legal obligation imposed by the perpetrator is precisely because of the negative inaction that it can perform, which ultimately leads to the emergence of a result of harm that could otherwise have been avoided. A crime, which is constructed as an omission, is referred to as a crime, which is generally characterized as negative inaction, deliberate or indifferent to the result of a possible harm. As a crime, it can be divided into pure and non-crime as crime. It is generally considered that the criminal law which the perpetrator constitutes in the form of omission clearly stipulates that the crime which is not constituted as a crime is pure and does not act as a crime, and the scholars call it true not to act as a crime. If the perpetrator does not constitute the criminal law in a way that does not act as a crime, the article clearly stipulates that the crime that is constituted as a way objectively and simultaneously causes the occurrence of the result of the legal real harm or the specific danger of the statutory harm is not pure and does not act as a crime, nor does it really act as a criminal. The causality of criminal law is not the inevitable condition for the actor to bear the responsibility, but it is the objective basis of the perpetrator to bear criminal responsibility. As a basis, it is not regarded as a causal relationship of crime, and it is important to investigate the crime of not being a crime Meaning: As to the behavior of crime, not as the source of obligation of crime and the causal relationship between crime, there have been a long period of argument in the history of criminal jurisprudence, and there is still no convincing authority. Conclusion. This article attempts to make a case study on the causal relationship between the crime and non-crime in the following sections: In the first part, the author discusses and sums up the related theories that do not act as a causal relationship between the two parts of the country and the two parts of the country. Sufficient preparation. The doctrine of non-criminal causality for foreign countries is divided into affirmation and denial as a result of the recognition of the causal relationship between crime and non-crime. Of these, it is affirmed that according to the different methods of argument that do not act as a causal relationship between crime, it is divided into two aspects: first behavior 'Interference,' he said, was a violation of his obligation to prevent the possibility of saying that he used to say "The theory of domestic non-crime causal relationship is generally divided into positive and negative aspects," he said. There are two kinds of viewpoints. Among them, according to the different kinds of explanation of the reason why the crime is not the crime, it is classified as an obligation violation, and the anti-fruit may be said to be different. In the negative way, according to the specific argument reason, it is also divided into the quasi-system theory and the condition In the second part, the author discusses the difference between the crime and the crime as a crime. The characteristic of causality is not as a causal relationship between the crime and the causality of the crime, but it does not act as a causal relation of crime. The reason, the reason force, the internal structure and so on are different from the criminal causality. The third part analyzes and discusses the causal relationship between the crime and the crime from the principle level, and concludes that there is no causal relationship between the crime and the crime. The principle of fruit and fruit destruction as a causal relationship of crime has been recognized by most scholars, and the discussion and analysis of the principle can not be used as a causal relationship. As for the determination of causality, the author holds that it should be distinguished that it is not as a crime and that it is not a crime, and that it should be adopted as a causal relationship between pure and non-crime. As a breach of an obligation, a breach of an expectation; a recognition of a causal relationship that is not pure. The fourth part, through the above three parts, does not act as the crime causal relation, in combination with the reality the most controversial omission act _ see danger is not saved, and distinguish it from different types If the individual does not act as a causal relationship, and if there is a causal relationship between the failure to rescue and the result of the harm, the failure to rescue shall constitute an impure omission.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D914
本文编号：2275772
[Abstract]:As a cause-and-effect relationship with the result of harm, it has always been a hot issue in the research of causality of criminal law. Failure to perform as a specific legal obligation imposed by the perpetrator is precisely because of the negative inaction that it can perform, which ultimately leads to the emergence of a result of harm that could otherwise have been avoided. A crime, which is constructed as an omission, is referred to as a crime, which is generally characterized as negative inaction, deliberate or indifferent to the result of a possible harm. As a crime, it can be divided into pure and non-crime as crime. It is generally considered that the criminal law which the perpetrator constitutes in the form of omission clearly stipulates that the crime which is not constituted as a crime is pure and does not act as a crime, and the scholars call it true not to act as a crime. If the perpetrator does not constitute the criminal law in a way that does not act as a crime, the article clearly stipulates that the crime that is constituted as a way objectively and simultaneously causes the occurrence of the result of the legal real harm or the specific danger of the statutory harm is not pure and does not act as a crime, nor does it really act as a criminal. The causality of criminal law is not the inevitable condition for the actor to bear the responsibility, but it is the objective basis of the perpetrator to bear criminal responsibility. As a basis, it is not regarded as a causal relationship of crime, and it is important to investigate the crime of not being a crime Meaning: As to the behavior of crime, not as the source of obligation of crime and the causal relationship between crime, there have been a long period of argument in the history of criminal jurisprudence, and there is still no convincing authority. Conclusion. This article attempts to make a case study on the causal relationship between the crime and non-crime in the following sections: In the first part, the author discusses and sums up the related theories that do not act as a causal relationship between the two parts of the country and the two parts of the country. Sufficient preparation. The doctrine of non-criminal causality for foreign countries is divided into affirmation and denial as a result of the recognition of the causal relationship between crime and non-crime. Of these, it is affirmed that according to the different methods of argument that do not act as a causal relationship between crime, it is divided into two aspects: first behavior 'Interference,' he said, was a violation of his obligation to prevent the possibility of saying that he used to say "The theory of domestic non-crime causal relationship is generally divided into positive and negative aspects," he said. There are two kinds of viewpoints. Among them, according to the different kinds of explanation of the reason why the crime is not the crime, it is classified as an obligation violation, and the anti-fruit may be said to be different. In the negative way, according to the specific argument reason, it is also divided into the quasi-system theory and the condition In the second part, the author discusses the difference between the crime and the crime as a crime. The characteristic of causality is not as a causal relationship between the crime and the causality of the crime, but it does not act as a causal relation of crime. The reason, the reason force, the internal structure and so on are different from the criminal causality. The third part analyzes and discusses the causal relationship between the crime and the crime from the principle level, and concludes that there is no causal relationship between the crime and the crime. The principle of fruit and fruit destruction as a causal relationship of crime has been recognized by most scholars, and the discussion and analysis of the principle can not be used as a causal relationship. As for the determination of causality, the author holds that it should be distinguished that it is not as a crime and that it is not a crime, and that it should be adopted as a causal relationship between pure and non-crime. As a breach of an obligation, a breach of an expectation; a recognition of a causal relationship that is not pure. The fourth part, through the above three parts, does not act as the crime causal relation, in combination with the reality the most controversial omission act _ see danger is not saved, and distinguish it from different types If the individual does not act as a causal relationship, and if there is a causal relationship between the failure to rescue and the result of the harm, the failure to rescue shall constitute an impure omission.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D914
【引证文献】
相关期刊论文 前1条
1 吕凯;张兆玲;;见危不救立法问题研究——由小悦悦事件引发的法律思考[J];天津法学;2012年02期
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