卧底警察不作为犯罪研究——以德国立法例的考察分析为视角

Issues Concerning Crimes of Omission of Undercover Police Officers:From Perspective of Investigative Analysis of German Legislation Example

德国基本法律与内部规定对卧底警察不作为犯罪的不同规定给执法实践带来诸多困难,其根本原因在于将警察的一般义务适用于卧底警察,忽视了卧底警察的特殊义务。在卧底警察只是违反一般义务的情况下,不构成不作为犯罪,即使符合普通意义上的不作为犯罪条件,宜应排除其可罚性。卧底警察只有在违反特殊义务且有能力履行而不予履行导致危害结果出现的情况下才可能构成不作为犯罪,具备可罚性。

Different provisions concerning crimes of omission in the Basic Law for the Federal Republic of Germany and in internal regulations of undercover police officers bring many difficulties in law enforcement.The fundamental reason for this is that general obligations of police officers are applied to undercover police officers,ignoring their special obligations.It does not constitute a crime of omission if an undercover police officer goes only against general obligations.Even if what an undercover police officer has done constitutes the crime of omission in the general sense,punishability should also be ruled out.Only when undercover police officers go against special obligations and fail to perform duties that are within their abilities,bringing about dangerous consequences,should they be judged to have committed a crime of omission and become punishable.