自杀的认定及其相关行为的刑法评价
王钢自杀的认定及其相关行为的刑法评价
Suicide and Related Offences in the Sense of Criminal Law
期刊名称：《法学研究》
期刊年份：
作者：王钢
单位：德国马克斯·普朗克外国与国际刑法研究所
中文关键词：自杀;自杀相关行为;间接正犯;法益侵害
英文关键词：suicide;suicide related offences;indirect perpetrator;harm to legal interest
中文摘要：
刑法中认定自杀有主客观两方面要求。在主观方面，被害人不仅应当认识到并且意欲死亡结果发生，而且必须自愿地、也即自主决定地选择了死亡。对于自愿性的判断应当以有效承诺的主观要件为标准。重大的动机错误同样导致不能成立自杀。此外，被害人还必须客观上事实性地支配着直接导致死亡的行为，在将不可逆转地造成死亡结果的最后关键时刻自己控制着事态的发展。自杀本身并非刑事不法行为，教唆或帮助自杀、对自杀者不予救助或者过失导致他人自杀等自杀相关行为也不应受到刑事处罚。
英文摘要：
Suicide in the sense of criminal law occurs if and only if someone acts intentionally or with foreknowledge to cause her death while in possession of appropriate mental faculties and controls the whole situation at the “point of no return”.In the subjective respect, the victim who commits suicide must decide to die on her own responsibility, i.e. on the precondition that her decision fulfills all the subjective conditions of an effective consent. Submission to physical force or to a threat of great and immediate bodily harm thus does not result in suicide. Decision by one who is legally incompetent or who by reason of youth, mental disease or defect or intoxication is manifestly unable to make a reasonable judgment as to the nature of harmfulness of the suicide is also not effective. Deception which results in a misunderstanding by the victim as to the very fact that her conduct is going to kill herself rules out the possibility of suicide. Although fraud in the inducement merely involves deception as to some collateral matter that influences the motive of the victim of suicide, it should also lead to the conclusion that the victim does not commit suicide. Thus, if the victim killed herself only because the perpetrator lied to her that her family would receive compensation for her life, her self-killing should not be considered as suicide.On the other hand, the victim of suicide must have control of the act which directly causes her death. She must, in other words, be “killed by herself”. That means, at the point of no return, the victim must have the possibility to decide by herself whether to die and in which way she dies. Because only so can we be sure that the death represents the will of the victim. Thus, if the victim dies as a result of the act of another, for example, if she dies from an injection of poison that her doctor gives her, then she does not commit suicide even when she decides to die on her own responsibility.Suicide, as long as it does not harm another, is not unlawful per se. One who induces, aides, recklessly or negligently causes another to commit suicide or does not prevent another from committing suicide should also not be punished. However, the most so-called “co-suicide” and “inducing or aiding suicide” cases in China are actually not related to suicide. In these cases, the perpetrator should be convicted of manslaughter.
全文阅读： 点击下载
