先行行为型保证人义务的法理基础及射程厘定

Jurisprudential Foundation and Range Determination of Guarantor's Obligation in the Type of Antecedent Behavior

在不作为犯领域,我国学界已近乎完成了由形式法义务论向实质法义务论的立场转向;但在此过程中,先行行为型保证人义务的法理基础尚待澄清。先行行为人系在肆意扩张了法秩序原本赋予他的行动余地,继而由此不当缩减他人行动余地时的“中和义务”负担者;而此义务的射程则与“应被中和的被害人行动余地之侵蚀范围”紧密契合,且亦可及于“行为人先前实施了犯罪行为”及“行为人通过自律第三人之介入而间接性创设法所不允许的危险”等情形。但于前者的场合,保证人义务的肯定与刑法中既有的中止犯等制度逻辑或期待可能性等理论模型并非无法调和;于后者的场合,行为人仅将自身的行动余地肆意扩张至了正犯行为终了前的“他人的犯意惹起”这一维度,而非扩张至了正犯行为终了后的后续危险现实化之历程,故仅于“正犯犯行的阻止”这一层面具有相应的义务负担。

In the field of omission crimes,our academic community has nearly completed the shift from the formal law obligation theory to the substantive law obligation theory;however,in this course,the jurisprudential basis of the guarantor obligation based on prior acts still needs to be clarified.In this article,the prior actor is the bearer of the"duty to neutralize"when the legal order has arbitrarily expanded the scope of action originally granted to him,and then unduly reduced the scope of action of others;and the range of this duty is closely related to the"scope of erosion of the victim's scope of action that should be neutralized",and can be extended to cases where"the perpetrator has previously committed a criminal act"and"the perpetrator indirectly creates a danger that is not permitted by law through the intervention of a self-regulating third party".In the former case,however,the recognition of the guarantor's obligation is not irreconcilable with the logic of the existing system of criminal law such as suspension or theoretical models such as the possibility of expectation.In the latter case,the perpetrator has only expanded the scope of his own action to the dimension of"the intention of others to commit the crime"before the end of the act of committing the crime,but not to the subsequent process of realizing the danger after the end of the act of committing the crime.