论我国刑法不应增设“见危不救罪”

Research on the China's criminal law shouldn't set up non-salvation-in-danger-crime

应将"见危不救"行为界定在一个合理范围之内。对"见危不救"与不作为犯罪的关系进行了梳理,并从"二次违法性"理论出发,提出目前我国刑法中不应当设立"见危不救罪",而应当分情况认定见危不救行为:构成不作为犯罪的以相应的刑法规范予以调整;不构成犯罪的,通过道德评价或运用其他法律、法规进行规制。

Nonsalvation indangercrime should be defined within a reasonable range,that is the perpetrator who bear no specific duties or obligations, knowing that others are suffering a serious physical danger, and the perpetrators have the ability to rescue, and the rescue action will not endanger themselves or the interests of others. By analysis, this article cleared the relationship between nonsalvation indangercrime and nonactioncrime. Suggested that non- salvation indangercrime shouldn＇ t be set up in China＇s criminal law by the theory of twice lawbreaking. We should take different measures under different situation. If it has constituted criminal omission, then it should be regulated by corresponding criminal article. If not, then it should only be restrained by moral obligation or the general laws outside criminal law.