不真正不作为犯的实行行为研究

A Reseach on Nonfeasance

不真正不作为犯的实行行为具有特殊性,对其实行行为的认定应当考察其等价性。对于等价性的判断应从作为义务以外具体地考察不作为对法益侵害的现实支配关系,即不作为者对于原有危险的因果利用是决定性的和唯一性的;不作为者实施了一定的行为,对法益侵害的结果进行了排他性的支配,使得他人的支配不可能。不真正不作为犯完全可能成立未遂,对此不应当简单地予以否定,对不真正不作为犯的"着手"应当联系作为义务予以具体的认定。

Nonfeasance has its particularity, to its implementation behavior recognized must in spect its equivalence. Regarding the equivalent judgment should from take outside the duty inspects specifically did not take to the law profit violation reality control relations, namely taking regarding the original dangerous cause and effect use is not decisive and arbitrary; Taking has not implemented certain behavior, has carried on the exclusive control to the law profit violation result, causes other people＇s control not to be impossible. Did not take not truly violates had completely possibly been established attempted, regarding this does not have to deny simply, to did not take not truly violates begins to have to relate,gives concrete recognizing as the duty.