真正不作为犯:义务困境与解释出路

The Crime of Real Omission: Predicaments of Obligation and Solutions through Interpretation

真正不作为犯构成要件要素中,义务这一核心要素面临艰难的解释困境,需要从义务内容及义务主体两方面进行澄清。真正不作为犯的界定存在争议,应当以“条文中包含不作为、条文谴责的重点在不作为”来定义真正不作为犯。在义务内容的解释上,不同的解释方法之间不能进行优劣对比,但存在具体的适用顺位,应从解释与立法的关系出发,充分考虑自由主义与风险控制的平衡,根据不同的法益类型建构相应的适用规则。在义务主体的解释上,应有条件地适用保证人理论,当义务主体和法益侵害结果之间具备高度关联性时,以保证人理论来确定主体范围;是否具备该高度关联性,取决于该罪与相应的不真正不作为犯进行的比较;拒不履行信息网络安全管理义务罪无需适用保证人理论,遗弃罪、不报、谎报安全事故罪、玩忽职守罪等则需要借助保证人理论对主体作出实质解释。

The obligation as the core element of the crime of real omission is difficult to be interpreted and needs to be clarified from two aspects: the content of obligation and the subject of obligation. There are controversies over the definition of the crime of real omission. The crime of real omission should be defined as "the text containing omission and the condemnation of the text focusing on the omission". In terms of the interpretation of the content of obligation, different interpretation methods should not be compared to list their advantages and disadvantages, but there is a specific sequence of application. We should start from the relationship between interpretation and legislation, fully consider the balance between liberalism and risk control, and establish corresponding rules on application according to different types of legal interests. The terms of the interpretation of the subject of obligation, the theory of guarantor should be conditionally applied, that is, when there is a high degree of connection between the subject of obligation and the result of infringement of interests, whether it is necessary to use the theory of guarantor to determine the scope of subject is highly related or not depends on the comparison between the crime and the corresponding crime of non-real omission. For the crime of refusing to perform the obligation of information network security management, there is no need to apply the theory of guarantor, but for the crime of abandonment, the crime of non-reporting, false reporting of safety accidents, the crime of dereliction of duty and so on, it is necessary to make substantial interpretation of subjects by means of the theory of guarantor.