关于“见死不救”的两个刑法问题

Two Problems in Criminal Law on "Seeing Someone in Mortal Danger without Lifting a Finger to Save Him"

把公序良俗和社会公德所要求履行的某些作为义务即重大道德义务视为不作为犯罪的作为义务,这种作法在国外已有立法先例。虽然目前我国尚无此类立法,但在实践中,司法机关也通常适用不作为犯罪理论来裁判“见死不救”行为,在理论上,学者们对此已有所认同。鉴于此,完全有必要通过具体的刑事立法来调整“见死不救”行为,而不仅仅是笼统地“借用”犯罪理论来规制此类日渐严重的社会现象。

It has legislative precedent abroad that regard some obligation of positive act -important moral obligation which public orders and social ethics require to fulfill as obligation of positive act of omission crime. Though China has not have legislation of this kind yet and udicial authorities usually use omission crime theory to award the behavior of 'Seeing someone in mortal danger without lifting a finger to save him', some scholars have approved this in theory to some extend. In view of this, it is necessary to adjust the more and more serious social phenomenon through the specific criminal legislation instead of 'borrowing' generally from other crime theories.