危险作业罪的规范目的及其实现--《刑法修正案(十一)》的标志性立法实践

The Normative Purpose and Implementation of Potentially Dangerous Operation--A Significant Legislative Practice of The Amendment (Ⅺ) to Criminal Law of the PRC

特定不法行为引起重大事故隐患,重大事故隐患具有引起重大事故发生的现实、紧迫危险,是危险作业罪的核心构成要件。在严格限制入罪的条件下,以极轻微业务危险犯的设置和适用,最大限度地遏制、预防危害生产安全重罪的发生,是《刑法修正案(十一)》增设危险作业罪的规范目的。与典型的刑法保护前置化不同,危险作业罪规制的行为原本就处于刑法既有的调整领域,新设业务危险犯,没有实质变动行政法律与刑法规定既有调整领域的界限,只是在传统调整领域内对刑法规制方式进行了结构优化,并列设置业务危险犯与过失结果犯等。摒弃机械划分罪与非罪界限的做法,在立法中为司法出罪预留必要的、适度的实体性裁量空间,是危险作业罪规定的标志性特征。危险作业罪的具体功能,既包括预防违反安全管理规定的过失犯罪的发生,也包括遏制违反安全管理规定的故意犯罪的发生。充分利用特定业务危险犯的制度资源,可以实现以轻罪适用预防重罪发生、以处罚危险犯预防实害犯发生的立法预期。

As the core elements of the potentially dangerous operation, there must be some certain illegal acts resulting in the potential damage of a serious accident, which will give rise to the realistic and urgent danger of the serious accident. Under the condition of strict restriction of the conviction, to curb and prevent the occurrence of the serious crime endangering safety in production to the greatest extent by the establishment and application of the extremely slight potentially dangerous offense in duty is the normative purpose of adding the charge of potentially dangerous operation to The Amendment(Ⅺ) to the Criminal Law of the People’s Republic of China. Unlike the typical principle of protection taking precautions concerning the criminal law, the behavior which potentially dangerous operation has already existed in the criminal law adjusting scope, and setting up a new clause as potentially dangerous offense in duty didn’t substantially enlarge the regulation scope of administrative law, neither did criminal law. In other words, it is merely optimizing the structure of the criminal law’s mode in the traditional territory and added article such as potentially dangerous offense in duty, as well as some kind of offense due to negligence and results in harmful consequence. Abandoning the practice of mechanically dividing the boundary between crime and non-crime and reserving necessary and appropriate substantive discretion space for judicial discretion in legislation are the symbolic characteristics of the provisions of potentially dangerous operation. The specific function of potentially dangerous in operation includes not only preventing the occurrence of negligent crime in violation of safety management regulations, but also containing the occurrence of intentional crime in violation of safety management regulations. By making full use of the system resources of certain kind of potentially dangerous offense in duty could realize the legislative expectation of preventing the occurrence of felony by applying misdemeanor and preventing the occurrence of actual harmful consequence by punishing potentially dangerous offense.