海峡两岸遗弃罪比较研究

A Comparative Study on the Crime of Abandonment between China's Mainland and Taiwan

海峡两岸遗弃罪立法各有长短,主要表现在:台湾的具体式立法模式优越于大陆的概括式立法模式;大陆刑法没有把无保护义务者的遗弃行为犯罪化是立法的重大漏洞;大陆遗弃罪主体范围有待扩大,台湾仅特别规定遗弃直系尊亲属罪似有不妥;两岸有关遗弃罪主观方面的理解,虽能自圆其说,但也均存在问题;台湾"刑法"新增阻却遗弃罪排除事由,值得深入研究;台湾将保护法益界定为个人法益以及对遗弃罪规定了不同幅度的法定刑和结果加重犯,值得大陆借鉴。

The legislations with regard to the crime of abandonment both in China's Mainland and Tai- wan have their own advantages and disadvantages. Firstly, the specified mode adopted by Taiwan is supe- rior to the generalized mode adopted by China's Mainland. Secondly,it is a major loophole that the abandon- ment behavior committed by people without protection obligation is not been criminalized in Mainland Chi- na and its range of subject of the crime of abandonment needs to be expanded. Thirdly,it is not proper for Taiwan to simply criminalize abandoning elder lineal relatives. And although the theories about how to un- derstand subjective elements of the crime of abandonment either in China's Mainland or in Taiwan are tena- ble,they both have deficiencies. Fourthly,the criminal code of Taiwan has specially included articles about excluding some behaviors from the crime of abandonment, which deserves our deep study, and it also pro- vides that individual interest will be the legal interest of the crime of abandonment and specifies different scopes of legal penalty and aggregated consequential offense of the crime of abandonment, which can be learned by China's Mainland.