不作为犯作为义务来源中先行行为的限定

On the Constraints of Preceding Acts as a Source of Obligations in Cases of Omission

摘要: 与不作为犯的其他形式法律义务来源相比，先行行为的异质性在于其缺乏坚实的制度基础和可资判断的文本依据，先行行为的核心特征在于其危险创设性。我国司法实务未有效把握先行行为的异质性和核心特征，形式化认定先行行为，导致不纯正不作为犯刑事责任的认定过于宽泛。对于先行行为的性质进行限定，义务违反说较因果关系说和折中理论更为合理。先行行为的实质义务论限定路径所采取的标准模糊且缺乏可操作性。德国的客观归责理论在先行行为的限定上具有借鉴意义和特殊的方法论意义。对于先行行为的具体界定，应以违法行为成立先行行为引发作为义务为原则，包括一般违法行为和犯罪行为，攻击性紧急避险应作为先行行为为违法行为的例外情形。

Abstract: Compared with other forms of legal obligations of inaction, the heterogeneity of prior acts lies in its lack of solid institutional foundation and textual basis for judgment, and the core feature of prior acts lies in their danger-creating nature. China’s judicial practice has not effectively grasped the heterogeneity and core characteristics of the prior act and has identified the prior act in a formalized manner, resulting in an overly broad identification of criminal liability for impure inaction. For the qualification of the nature of the prior act, the obligation violation theory is more reasonable than the causal relationship theory and the compromise theory. The criteria adopted for the qualification path of the substantive obligation theory of prior acts are vague and lack practicability. The German objective theory of attribution has a reference significance and special methodological significance in the qualification of prior acts. For the specific definition of a prior act, the principle should be that the establishment of a prior act triggers the obligation to act as a result of the violation of law, including general violation of law and criminal act, and the offensive emergency avoidance should be the exception of the prior act as a violation of law.