规范论视域下身份犯的行为不法内涵与类型

On the Connotation of Behavioral Illegality and Types of Status-related Crimes from the Perspective of Norm-based Theory

身份犯并不保护所谓真正“特别法益”,也并未创设特别法益的保护规范,只创设了保护一般法益的特别举止规范。身份犯的不法内涵,在于违反了特别主体资格附加的作为义务。基于违反的义务类型,可将身份犯分为违反制度性作为义务的身份犯、违反法益保护特别义务的身份犯以及附属于一般不法的身份犯。不同类型的身份犯,遵循各自由一般举止规范到具体作为义务的衍化机制。在身份犯中确定正犯,遵循与所有不法判断一样的教义学基础。在有身份者参与共同犯罪的场合,应以具体犯罪中行为人是否违反、违反何种法益保护(作为)义务导致法益侵害结果的实现,以及违反的义务强度,共同作为犯罪参与者行为不法的判断标准。

The law on status-related crimes does not protect so-called genuine"special legal interests"or create norms on the protection of special legal interests,but creates special norms of conduct that protect general legal interests.The connotation of illegality of the status-related crimes lies in the violation of the obligation to act that is attached to the special status of a subject.Based on the types of obligation breached,status-related crimes can be divided into one involving the breach of institutional obligation to act,one involving the breach of special obligation of the protection of legal interests and one involving general unlawfulness.The different types of status-related crimes follow a mechanism of derivation from a general norm of conduct to a specific obligation to act respectively.The determination of the principal offender in the status-related crimes follows the same doctrinal basis as that in all determinations of illegality.In the case of joint crime with the participation of both perpetrators with and without a statue,it is advisable to jointly take whether an offender violates the obligation to protect a legal interest(to act),which lead to the realization of harmful result of infringing upon legal interests,which kind of the above-mentioned obligation an offender violates,and the intensity of the violation of the obligation as the standards for determining the behavioral illegality of participants.Keywords:Status-related Crime;Norms of Conduct;Obligation to Act;Derivation Mechanism;Criminal ParticipationThe law on status-related crimes does not protect so-called genuine"special legal interests"or create norms on the protection of special legal interests,but creates special norms of conduct that protect general legal interests.The connotation of illegality of the status-related crimes lies in the violation of the obligation to act that is attached to the special status of a subject.Based on the types of obligation breached,status-related crimes can be divided into one involving the breach of institutional obligation to act,one involving the breach of special obligation of the protection of legal interests and one involving general unlawfulness.The different types of status-related crimes follow a mechanism of derivation from a general norm of conduct to a specific obligation to act respectively.The determination of the principal offender in the status-related crimes follows the same doctrinal basis as that in all determinations of illegality.In the case of joint crime with the participation of both perpetrators with and without a statue,it is advisable to jointly take whether an offender violates the obligation to protect a legal interest(to act),which lead to the realization of harmful result of infringing upon legal interests,which kind of the above-mentioned obligation an offender violates,and the intensity of the violation of the obligation as the standards for determining the behavioral illegality of participants.