从法理到规范:危险作业罪的法教义学分析

From Jurisprudence to Norms:A Legal Dogmatics Analysis of the Crime of Dangerous Work

危险作业罪入罪可归因于公共政策和积极刑法立法观的推动。该罪的行为方式可概括为违反行政安全管理监督命令+三种行为之一+现实危险,理解时需要把握关键要素。从立法上而言,危险作业罪缺乏注意规定和类型性或兜底性条款不是立法的疏漏,而是另有原因。从司法上而论,危险作业罪可以作为预防责任事故类犯罪的前置罪,但范围不能扩大到环境污染、医疗卫生等领域。判断“现实危险”必须结合危险作业领域是否处于容易引起灾害发生的客观环境因素考量。危险作业罪和组织他人违章冒险作业罪是危险犯和实害犯的关系,但不存在法条竞合。它与危险驾驶罪是牵连犯的关系,与非法买卖、运输、储存爆炸物罪(危险物质罪)是想象竞合犯的关系。

The conviction of the crime of dangerous work can be attributed to the promotion of public policy and a positive view of criminal law legislation. The behavior of the crime can be summarized as violation of administrative safety management supervision orders + one of three behaviors + realistic danger. To understand these, we need to grasp the key elements. From the legislative point of view, the lack of attention to the provisions and the typological or informative provisions of the crime of hazardous operations is not an omission of the legislation, but for other reasons. From the judicial point of view, the crime of dangerous work can be used as a pre-crime to prevent major liability accident crimes, but the scope cannot be expanded to the fields of environmental pollution, medical and health and so on. To judge the “realistic danger”,it is necessary to consider whether the hazardous operation field is in the objective environmental factors that are easy to cause disasters. The crime of dangerous work and the crime of organizing others to operate against rules and regulations are the relationship between the crime of dangerous operation and the crime of actual harm, but there is no concurrence of laws and regulations. It is related to the crime of dangerous driving as an implicated crime. It is related to the crime of illegal trading, transportation, and storage of explosives(crimes of dangerous substances) as an imaginative joinder of offenses.