人机共驾模式下的接管义务及其刑事归责

The Duty to Take Over and Its Criminal Attribution under the Model of Human-Machine Co-driving

在人机共驾模式下,驾驶员对汽车的接管是驾驶过程中风险控制责任主体发生转移的关键时间点。明确人机共驾模式下接管义务的内涵、该义务产生的情形以及接管义务的实现机制,不仅有利于合理地设定接管过程中各参与主体的行为标准,也为接管失败所引发事故的刑事归责提供依据。应结合人因学原理对驾驶员的接管能力进行判断,并为适应该能力合理地设定其他参与主体的注意义务。在过失未履行接管义务而引发事故的场合,信赖原则仍然可以适用,而对驾驶员的刑事归责需要同时满足不作为犯和过失犯的条件。除此之外,也有必要对不同类型的过失竞合提出适当的归责方案。

Under the human-machine co-driving model,the driver’s taking over is a key timing when the subject of responsibility to control the risks is shifted.Clarifying the content of the take-over duty,the circumstances in which the duty arises and the mechanism for realising take-over duty is not only conducive to reasonably setting the standard of conduct for each subject in the process of taking over,but also provides a basis for criminal attribution for accidents caused by failure to take over.In particular,the driver’s ability to take over should be judged in the light of human factors principle,and the duty of care of other participants should be set reasonably to accommodate this ability.In the case of an accident caused by a negligent failure to comply with the take-over duty,the reliance principle can still apply.And the criminal liability of the driver needs to meet the conditions of both omission and negligence.In addition,it is necessary to propose an appropriate criminal attribution scheme for different concurrences of negligence.