不作为犯中的先前行为
张明楷不作为犯中的先前行为
Prior Conduct of Omission Offenses
期刊名称：《法学研究》
期刊年份：
作者：张明楷
单位：清华大学法学院
中文关键词：不作为犯;作为义务;先前行为
英文关键词：offense of omission;duty to act;prior conduct
中文摘要：
应当以形式考察与实质考察相结合的方法，探讨不作为犯的作为义务的发生根据。仅肯定先前行为是作为义务的发生根据，或者完全否定先前行为是作为义务的发生根据，都不妥当。但是，如果不对先前行为进行实质的限定，就会无限扩大不作为犯的处罚范围。先前行为具备下列条件时，才能成为作为义务的发生根据：第一，对刑法所保护的具体法益造成了危险；第二，危险明显增大，如果不采取积极措施，危险就会立即现实化为实害；第三，行为人对危险向实害发生的原因具有支配。不作为、具备违法阻却事由的行为、过失犯罪行为与故意犯罪行为，均可能成为产生作为义务的先前行为。危险的先前行为不仅是不真正不作为犯的义务来源，而且是非典型的真正不作为犯的义务来源。
英文摘要：
The duty to act should be determined by way of combining both the formalized examination based on law and the substantive examination based on substantive legal reasons. In the traditional classification of duties to act, the prior conduct is classified as a formalized duty under law (as the defendant of the omission offense is exact the actor commits the prior conduct), therefore, so long as the prior conducts are restricted substantially, certain prior conducts can establish the duty to act that entails criminal liability.In China, the requirement of the “equal seriousness” of the omission and the commission by a positive act only means that an omission should also satisfy the constitutive requirements as prescribed by the criminal law. In the context of commission, the killing by a positive act is the cause of the death, and the defendant has control over such cause. Therefore, to establish an omission constitutes murder also requires the defendant has control over the cause of death. In this sense, it is right and acceptable to restrict the substantive requirement of a duty to act to the control over the cause. When the defendant commits a dangerous prior conduct and takes no positive measures to prevent the occurrence of the actual harm, he or she still has control over the cause. Specifically, if a prior conduct creates a source of danger to the legal interest protected by the criminal law, and the danger is so magnified that will be imminently materialized into actual harm without positive measures, the defendant has control over the cause of the actual harm. Omissions, offenses with justificatory defenses, offenses of negligence and intentional offenses may all become the prior conduct which results in the duty to act. Dangerous prior conducts give rise to the duty to act not only for a derivative omission offense, but also for a non-typical genuine omission offense.
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