试论竞技体育中故意伤害行为的刑法考量

Criminal Law Consideration of Intentional Injury Behavior in Competitive Sports

采用文献研究结合逻辑分析的方法,从竞技体育行业特殊性及其刑法规制争议性出发,结合国内外相关案例,通过对刑法规制的损益分析,从支持刑法规制的角度,提出了认定竞技体育故意伤害行为是否触犯刑法的具体判断标准及步骤,即应当严格遵循"客观不法+主观有责"两步判断法,在主客观重合的范围内判断该行为是否构成犯罪,必要时考虑该行为损害的法益是否受刑法保护,从而更好地进行个案平衡。

By the method of literature study plus logic analysis and based on the particularity of competitive sports and the controversy of the criminal law, the article makes a profit and loss analysis of the criminal law, using the relative domestic and foreign cases. From the angle of supporting the law, it suggests the detailed judgment criteria and steps for deciding whether the intentional injury behavior in competitive sports violates the criminal law. That is to say, we should strictly follow the two steps of ＂objective illegality ＋ subjective responsibility＂ in order to decide whether the behavior violates the law within the scope of the overlap of subjectivity and objectivity. If necessary, we should consider whether the legal profit damaged by the behavior is protected by the law. Therefore, it can better balance the case.