刑法上被允許的危險(xiǎn)研究
發(fā)布時(shí)間：2018-07-27 18:57
【摘要】：當(dāng)科技發(fā)展、社會進(jìn)步,與法益保護(hù)、安全保障難以兩全的情況下,如何化解這種兩難悖論,就成為所有刑法學(xué)者都不得不面對的一個(gè)問題,這就需要我們探求相應(yīng)的考量藝術(shù),以做出一種價(jià)值最大化、最理性的選擇。被允許危險(xiǎn)理論的價(jià)值,就在于在社會發(fā)展與安全保障價(jià)值之間找到了一個(gè)平衡點(diǎn),其通過對一些具有法益侵害危險(xiǎn)但又為社會發(fā)展所不可或缺的行為類型設(shè)置的出罪機(jī)制,最大限度衡平了發(fā)展與安全之間的價(jià)值沖突。 那么,被允許的危險(xiǎn)出罪的理論根基在哪?這首先要理清一個(gè)根本前提,那就是一什么是犯罪?犯罪的本質(zhì)是什么?法益侵害說,把犯罪看成對法益的侵害或威脅,是結(jié)果無價(jià)值的彰顯,但無疑也有以結(jié)果論責(zé)任之嫌；規(guī)范違反說,認(rèn)為犯罪是對法律背后的社會規(guī)范的違反,以行為人的不法論責(zé)任,雖體現(xiàn)了行為無價(jià)值的傾向,但規(guī)范內(nèi)涵與外延的模糊性也使犯罪圈的劃定有被擴(kuò)大的風(fēng)險(xiǎn)。因而,法益侵害與規(guī)范違反二元的犯罪本質(zhì)論得到眾多學(xué)者的青睞,而建立在結(jié)果非價(jià)暨行為非價(jià)二元論立場上的被允許的危險(xiǎn)理論,也正是對傳統(tǒng)過失理論長期強(qiáng)調(diào)結(jié)果無價(jià)值、以結(jié)果論責(zé)任進(jìn)行反思的結(jié)果,其以實(shí)質(zhì)違法性為根基,有效修正了傳統(tǒng)結(jié)果無價(jià)值論下過失犯罪圈過于擴(kuò)大的傾向。 文章正文分為五個(gè)部分。引言部分主要就本選題的提出、研究意義和研究目的作出提綱挈領(lǐng)的概述,結(jié)束語部分主要對全文內(nèi)容給予高度總結(jié),并就理論未來作出展望。 第一部分：被允許危險(xiǎn)理論的緣起。主要闡釋了被允許危險(xiǎn)的理論內(nèi)涵和發(fā)展變遷。通過全面解讀被允許危險(xiǎn)的基本概念、特征、價(jià)值機(jī)能,明確了被允許危險(xiǎn)的理論內(nèi)涵,從橫向梳理了被允許危險(xiǎn)在今天的理論脈絡(luò)；通過具體闡述被允許危險(xiǎn)的理論萌芽、確立和演變,理清了被允許危險(xiǎn)的發(fā)展變遷,從縱向明晰了被允許危險(xiǎn)在歷史上的演化軌跡。 第二部分：被允許危險(xiǎn)的理論基礎(chǔ)。主要闡釋了被允許危險(xiǎn)的理論淵源和正當(dāng)化根據(jù)。通過考察被允許危險(xiǎn)與新舊過失論、注意義務(wù)限制論、危險(xiǎn)分配理論、信賴原則、客觀歸屬的理論的關(guān)系,探究了被允許危險(xiǎn)的理論淵源；通過法益衡量說、目的說和社會相當(dāng)性說三種觀點(diǎn)的學(xué)說爭鳴和理論檢討,最終闡明了本文對社會相當(dāng)性說的提倡,明確了被允許危險(xiǎn)的正當(dāng)化根基。 第三部分：被允許危險(xiǎn)的體系定位。主要探討了被允許危險(xiǎn)在德日大陸法系犯罪論語境及在我國犯罪構(gòu)成視野下的體系歸屬。在三階層犯罪論體系下,被允許危險(xiǎn)的地位歸屬主要涉及構(gòu)成要件該當(dāng)性阻卻說、違法性阻卻說、有責(zé)性阻卻說和違法有責(zé)阻卻兩分說四種觀點(diǎn)爭議；在我國耦合式的犯罪構(gòu)成體系下,由于實(shí)質(zhì)違法性的判斷已經(jīng)融入各個(gè)構(gòu)成要件之中,故被允許危險(xiǎn)的體系歸屬就不存在如上大陸法系下的爭議。 第四部分：被允許危險(xiǎn)的判斷基準(zhǔn)。主要通過在對國內(nèi)外相關(guān)學(xué)者的見解予以反思的基礎(chǔ)上,嘗試對被允許危險(xiǎn)判斷基準(zhǔn)進(jìn)行構(gòu)造。鑒于結(jié)果與行為非價(jià)二元論的立場,將被允許危險(xiǎn)的判斷基準(zhǔn)從法益衡量與行為樣態(tài)考量兩個(gè)方面給出盡量詳實(shí)而有可操作性的判斷基準(zhǔn),以使被允許危險(xiǎn)在實(shí)踐中的適用有據(jù)可依。 第五部分：被允許危險(xiǎn)的實(shí)踐適用。主要從兩個(gè)角度入手,首先結(jié)合當(dāng)前的社會背景論述了被允許危險(xiǎn)的適用范圍必然不斷擴(kuò)大的傾向；之后,以被允許的危險(xiǎn)在醫(yī)療實(shí)踐領(lǐng)域的具體適用為范例,探析了醫(yī)療行為適用被允許危險(xiǎn)的正當(dāng)化要件、被允許危險(xiǎn)對醫(yī)療注意義務(wù)與醫(yī)療過失的具體判定以及被允許危險(xiǎn)在醫(yī)療實(shí)踐領(lǐng)域的適用限制等,通過被允許的危險(xiǎn)在實(shí)踐運(yùn)用中的這一典型縮影,有力彰顯了該理論的巨大實(shí)用性。
[Abstract]:When the development of science and technology, the social progress, the protection of the legal interest and the safety and security are difficult, how to dissolve this dilemma has become a problem all the criminal scholars have to face, which requires us to seek the corresponding examination art to make a value maximization, the most rational choice. The price of the permitting danger theory. The value is to find a balance between the social development and the security value. Through the crime mechanism set up on some kinds of behavior types that have the danger of legal benefit but also indispensable to the social development, it equitable to balance the value impulse between development and security.
Then, where is the theoretical foundation of the permissible permissible crime? First, to clarify a fundamental premise, that is, what is a crime? What is the essence of the crime? The infringement of the legal interest is the infringement or threat to the legal interest, and the result is unworthy of the result, but there is no doubt that there is a consequence of the responsibility of the crime; Crime is a violation of the social norms behind the law, with the unlawful liability of the perpetrator, although it embodies the tendency of unworthy behavior, but the fuzziness of the normative connotation and extension also makes the delimitation of the criminal circle an enlarged risk. Therefore, the theory of the infringement of the legal interest and the standard violation of two yuan has been favored by many scholars and established in the knot. The permissible danger theory in the position of non valence and behavior non valence dualism is also the result of the long stress on the result of the traditional negligence theory that the result of the result on the responsibility of the result theory, which is based on the substantive illegality, effectively modifies the tendency of the excessive expansion of the criminal circle of negligence under the traditional result of the value theory of the traditional result.
The text of the article is divided into five parts. The introduction is mainly about the introduction of the topic, the significance and the purpose of the study. The concluding remarks mainly give a high summary of the content of the full text, and make a prospect for the future of the theory.
The first part: the origin of the permitted danger theory. It mainly explains the theoretical connotation and the development change of the permitting danger. Through the comprehensive interpretation of the basic concepts, characteristics, value function of allowed danger, the theoretical connotation of permitting danger is clarified, and the theoretical context of the permitting danger in today is combed horizontally. Allowing dangerous theories to germinate, establish and evolve, clarify the perils of permitting development and change, and longitudinally clarify the evolutionary trajectory of permitting danger in history.
The second part: the theoretical basis of permitting danger. It mainly explains the theoretical origin and the justification of the permitting danger. Through the investigation of the relationship between the permitting danger and the old and new theory of negligence, the theory of the liability for obligation, the theory of dangerous distribution, the principle of trust, the theory of objective attribution, the theoretical origin of the permitting danger is explored; through the law of interest. At the end of this paper, the argument and the theoretical review of the three views of the objective and the social equivalence, finally clarified the promotion of the theory of social equivalence, and made clear the justification for the permitting danger.
The third part: the perilous system orientation. It mainly discusses the context of the perilous danger in the context of the criminal theory of the German and Japanese civil law and the system of the system under the view of the constitution of the crime in our country. Under the system of the three stratum crime, the attribution of the perilous status is mainly involved in the constitutive requirements, but the illegality resists, and the responsibility is hindered. There are four points of view about the dispute between the offense and the offense; under the system of coupled crime in our country, the judgment of the substantive illegality has been incorporated into all the elements of the constitution, so the disputation of the perilous system of ownership is not like the dispute under the continental law system.
The fourth part: the datum that is allowed to be dangerous. On the basis of reflecting on the views of the relevant scholars at home and abroad, we try to construct the permitting risk judgement datum. In view of the position of the non valence dualism of the result and the behavior, we will give the perpered judgement datum from the two aspects of the legal interest measure and the behavior pattern. We should try to make a benchmark that is as detailed and workable as possible so as to enable the application of permitting danger in practice.
The fifth part: the application of permissible practice. First, from two angles, first, the tendency to expand the scope of the permissible danger is discussed in the light of the current social background. After that, the application of the permissible danger in the field of medical practice is an example, and the application of the medical behavior to be permissible is analyzed. The great practicality of the theory is strongly highlighted by the typical epitome of the permissible danger in the practice of practice, such as the requirement of the permissible danger to medical attention obligations and medical negligence and the applicable limits of the permissible danger in the field of medical practice.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D914
，
本文編號：2148835
[Abstract]:When the development of science and technology, the social progress, the protection of the legal interest and the safety and security are difficult, how to dissolve this dilemma has become a problem all the criminal scholars have to face, which requires us to seek the corresponding examination art to make a value maximization, the most rational choice. The price of the permitting danger theory. The value is to find a balance between the social development and the security value. Through the crime mechanism set up on some kinds of behavior types that have the danger of legal benefit but also indispensable to the social development, it equitable to balance the value impulse between development and security.
Then, where is the theoretical foundation of the permissible permissible crime? First, to clarify a fundamental premise, that is, what is a crime? What is the essence of the crime? The infringement of the legal interest is the infringement or threat to the legal interest, and the result is unworthy of the result, but there is no doubt that there is a consequence of the responsibility of the crime; Crime is a violation of the social norms behind the law, with the unlawful liability of the perpetrator, although it embodies the tendency of unworthy behavior, but the fuzziness of the normative connotation and extension also makes the delimitation of the criminal circle an enlarged risk. Therefore, the theory of the infringement of the legal interest and the standard violation of two yuan has been favored by many scholars and established in the knot. The permissible danger theory in the position of non valence and behavior non valence dualism is also the result of the long stress on the result of the traditional negligence theory that the result of the result on the responsibility of the result theory, which is based on the substantive illegality, effectively modifies the tendency of the excessive expansion of the criminal circle of negligence under the traditional result of the value theory of the traditional result.
The text of the article is divided into five parts. The introduction is mainly about the introduction of the topic, the significance and the purpose of the study. The concluding remarks mainly give a high summary of the content of the full text, and make a prospect for the future of the theory.
The first part: the origin of the permitted danger theory. It mainly explains the theoretical connotation and the development change of the permitting danger. Through the comprehensive interpretation of the basic concepts, characteristics, value function of allowed danger, the theoretical connotation of permitting danger is clarified, and the theoretical context of the permitting danger in today is combed horizontally. Allowing dangerous theories to germinate, establish and evolve, clarify the perils of permitting development and change, and longitudinally clarify the evolutionary trajectory of permitting danger in history.
The second part: the theoretical basis of permitting danger. It mainly explains the theoretical origin and the justification of the permitting danger. Through the investigation of the relationship between the permitting danger and the old and new theory of negligence, the theory of the liability for obligation, the theory of dangerous distribution, the principle of trust, the theory of objective attribution, the theoretical origin of the permitting danger is explored; through the law of interest. At the end of this paper, the argument and the theoretical review of the three views of the objective and the social equivalence, finally clarified the promotion of the theory of social equivalence, and made clear the justification for the permitting danger.
The third part: the perilous system orientation. It mainly discusses the context of the perilous danger in the context of the criminal theory of the German and Japanese civil law and the system of the system under the view of the constitution of the crime in our country. Under the system of the three stratum crime, the attribution of the perilous status is mainly involved in the constitutive requirements, but the illegality resists, and the responsibility is hindered. There are four points of view about the dispute between the offense and the offense; under the system of coupled crime in our country, the judgment of the substantive illegality has been incorporated into all the elements of the constitution, so the disputation of the perilous system of ownership is not like the dispute under the continental law system.
The fourth part: the datum that is allowed to be dangerous. On the basis of reflecting on the views of the relevant scholars at home and abroad, we try to construct the permitting risk judgement datum. In view of the position of the non valence dualism of the result and the behavior, we will give the perpered judgement datum from the two aspects of the legal interest measure and the behavior pattern. We should try to make a benchmark that is as detailed and workable as possible so as to enable the application of permitting danger in practice.
The fifth part: the application of permissible practice. First, from two angles, first, the tendency to expand the scope of the permissible danger is discussed in the light of the current social background. After that, the application of the permissible danger in the field of medical practice is an example, and the application of the medical behavior to be permissible is analyzed. The great practicality of the theory is strongly highlighted by the typical epitome of the permissible danger in the practice of practice, such as the requirement of the permissible danger to medical attention obligations and medical negligence and the applicable limits of the permissible danger in the field of medical practice.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D914
，
本文編號：2148835
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