“见危不救”入罪的法理阐释

Legal Interpretation of Criminalizing“Looking on Unconcerned to Others Danger”

“见危不救”是指不负有特定法律救助义务或职责的公民,在面临社会公共利益或他人合法权益陷入紧急危险,且实施救助对本人或第三人并无危险时,有能力救助却不予救助的行为。“见危不救”违背最低层次的道德义务,有将其犯罪化的必要性与可行性;于己无损的同时对整体社会价值有正向引导的功能,符合人作为社会人的属性;该罪以实害结果入罪,对法益侵害性进行必要限缩,并不会必然动摇刑法的谦抑性;“见危不救”入罪也不存在司法适用上的障碍。基于法的价值——秩序、正义和自由维度证成,“见危不救”入罪是法的秩序价值对维护社会安全要求的体现,也符合正义价值中对个人正义和社会正义的要求,同时也为多元至善主义对共同善的发展提供实践的可能性。

“Looking on Unconcerned to Others Danger”refers to the behavior of citizens who do not bear specific legal obligations or responsibilities,refusing to provide assistance when faced with an emergency that social public interests or the legitimate rights and interests of others are in danger.Moreover,they have the ability to provide assistance,and the implementation of such assistance does not pose a danger to themselves or to a third party,but they still refuse to provide help.“Looking on Unconcerned to Others Danger”belongs to the lowest level of moral obligation and there is a necessity and feasibility to criminalize this behavior,as it not only does no harm to the rescuers themselves but also has a positive guiding effect on the overall social values,in line with the natural attributes of humans as social beings.The conviction of this crime is based on the actual harm caused,and has a necessary shrinkage of its infringement on legal interests.It will not inevitably undermine the restraint principle of criminal law and there are no obstacles to its judicial application.Based on the value of law-provides both order and justice as well as freedom,criminalizing“Looking on Unconcerned to Others Danger”is a manifestation of the law’s order value in maintaining social security,and also meets the requirements of individual and social justice in the value of justice.At the same time,it provides the possibility of practice for the development of liberal pluralism and perfectionism towards the common good.