不作为犯罪义务来源:职务或业务上要求的义务标准的重构

The Source of Non Criminal Obligations: Reconstruction of Duty Standards Required by Duty or Business

作为义务是不作为犯罪的成立条件之一,关于作为义务的来源,目前通说仍采用四分说,但这形式上的判断模式易导致义务范围的不明确,特别是职务或业务上要求的义务认定标准模糊不清,应对其分别从概念与义务依据的角度进一步明晰和阐释。义务存续期间不应等同于上班时间,其次应当是基于合法、正当的职务或业务而产生。职务或业务上要求的义务应确立以二元论为核心的判断标准,明确冲突义务的化解规则,引入重大职业道德义务。

The obligation to act is one of the conditions for the establishment of the crime of inaction. As for the source of the obligation to act, the four-part theory is still commonly used. However, this formal judgment model can easily lead to unclear scope of obligations, especially the unclear standards for determining obligations required by duties or business. It should be further clarified and explained from the perspectives of concept and obligation basis. The duration of obligations should not be equivalent to working hours, and should be based on legitimate and legitimate duties or business. The obligations required by the position or business should establish a dualistic judgment standard as the core, clarify the rules for resolving conflicting obligations, and introduce significant professional ethics obligations.