不真正不作为犯的二难推理及破除路径

The Dilemma in the Reasoning of Derivative Omission Offenses and the Resolution Approach

不真正不作为犯的二难推理在于:如果认为不真正不作为犯与作为犯具有不同的规范结构,则以作为犯的规定处罚不真正不作为犯时构成类推,如果认为两者具有相同的规范结构,又无法证明不真正不作为具有原因力。德国刑法学破除该二难推理的过程可以概括为以解释论的成果最终实现了立法突破,即1975年德国刑法总则第13条的制定。日本法未能实现如德国法一样的转变。德日两国的不同经验足以引起我国刑法学的重视。为了解决理论争议及实务问题,应当先从立法上奠定解决该问题的基础,即参照德日等国的立法规定,在总则中设定关于不作为犯的处罚条款。

The dilemma in the reasoning of derivative omission offenses is as follows, if it is believed that derivative omission offenses and action offenses have different normative structures, to punish derivative omission offenses according to the provisions on action offenses action constitutes analogy;if it is believed that they have the same normative structure, it is unable to prove the causal force of derivative omission offenses. The process of resolving this dilemma in German criminal law can be summed up as a final realization of breakthrough in legislation with the achievement of hermeneutics—the formulation of Article 13 of the General Provisions of Criminal Law in 1975.Japanese criminal law failed to achieve the same transformation as German law. The different experiences of Germany and Japan are enough to attract the attention of the criminal law circle of China.In order to solve the theoretical disputes and practical problems, it is necessary to first lay foundation for solving the problem at the level of legislation, that is, to set forth clauses on penalty for omission offenses in the General Provisions with reference to the legislative provisions of other countries such as Germany and Japan.