论道德法律化及其限度——以见危不救为视角

On the Limits of Moral Legalization—From the Perspective of Seeing Danger and Not Helping

摘要: 近年来，关于见危不救是否入罪引起了学者们的激烈讨论。有人积极主张刑法增设见危不救罪，有人则对此持反对意见。对于见危不救罪是否应当入罪的讨论实际上是对道德法律化问题的思考。本文以见危不救罪入刑的不可行性为切入点，论述了法律和道德的调整范围并不完全相同，将见危不救罪入刑将会违反法律是最低限度的道德，探讨出结论道德法律化应当具有界限。对于如何明确道德法律化的限度，本论文提出以下三种建议和方向：法律化的道德应当具有普适性，道德法律化应当符合社会发展规律，道德法律化应当符合法治的原则和精神。

Abstract: In recent years, the public has launched a heated discussion on whether or not seeing danger without saving should be criminalized. Some people actively advocate the creation of the crime of failing to save in danger in criminal law, while others oppose it. The discussion on whether the crime of failing to save in danger should be criminalized is actually a reflection on the problem of moral legalization. This paper takes the infeasibility of the crime of seeing danger without saving into punishment as the starting point, and discusses that the scope of adjustment of law and morality is not exactly the same, the crime of seeing danger without saving into punishment will violate the law is the minimum morality, and explores the conclusion that the moral legalization should have boundaries. For how to clarify the limits of moral legalization, this paper puts forward the following three suggestions and directions: legalized morality should have universality, moral legalization should conform to the law of social development, and moral legalization should conform to the principles and spirit of the rule of law.