“VTS”职务过失罪与非罪的法理分析

A nomological analysis of functional crime of negligence in VTS

船舶交通服务VTS(Vessel Traffic Services)中心是交通主管机关为增进水上交通安全、提高交通运输效率以及保护海洋环境而组织设立的监管与服务系统。近30年来,各地VTS系统硬件建设与技术破解能力日新月异,相比之下软件管理和职务风险防范能力明显滞后。VTS值班人员的渎职犯罪风险伴随水上交管失控或失误事故而逐渐升级,检察机关对案件的介入使该问题的解决方案不得不注入刑法思考。VTS值班人员具备渎职犯罪的身份条件,其职务过失理论上属于监管过失,但是,职务的懈怠与危害结果之间具有间接的因果关系,认定玩忽职守罪不符合犯罪客观方面的要求。依据大陆法系刑法的"依赖原则"和"被允许的风险"之理论,VTS值班人员的职务过失在客观归责环节可阻却刑事责任。

VTS （Vessel Traffic Services ） is a supervisory and service system implemented by the traffic administration to promote the safety and efficiency of water transport as well as protecting the marine environment. In the past 30 years, China has been taking up with the construction of systemic hardware and technological progress. Yet due to the flaw of software administration, the question that functional crime of negligence might be prosecuted for administrative penalties or criminal offences still remains. To answer the above question, the author claims, under consideration of subjective roles, officials of VTS possess special capacity as subjects of malfeasance. However, the officials＇ functional negligence is attributed to supervisory negligence, which indirectly results in the causal outcome, so it cannot be attributed to the crime of dereliction owing to the objective capacity. According to the reliance principle in Continental Criminal Laws and the permitted risk theory, functional negligence of VTS could be objectively immune to criminal punishment.