Discussion on the problem whether the act of seeing someone in mortal danger without rescue should be criminalized has been a long time. Both the supporters and the objectors have reasonable reason. In fact, it is necessary to criminalize a part of the behavior of seeing someone in mortal danger without rescue, but in the sense of criminal law the behavior should be strictly limited. It is also necessary to protect the obligors. Criminalizing the behavior of seeing someone in danger without rescue and the principles of criminal law do not conflict.
Key words: seeing someone in mortal danger without rescue, criminalizing, rationality, modesty
In recent years, the media continue to report eventsof seeing someone in mortal danger without rescue, causing widespread concern from all walks of life, a time through the legislative rules call us to see the phenomenon of danger, criminalization of seeing someone in mortal danger without rescue has become a hot topic of criminal law. When the traditional ethics is not enough to regulate people's behavior, it is reasonable to hope that the feeling of recourse to the law is reasonable, but it is necessary to solve the problem by law, especially criminal means, it should be another topic. Criminal law as a last resort evil, any criminal law to regulate the issue should be based on its reasonable premise, and if the risk will not save the behavior of the crime, the scope of the decision and the protection of the relief obligations are very important. This article will focus on the above issues on the criminalization of seeing someone in mortal danger without rescue, hope to contribute the meager power to our country in criminal legislation.
An Analysis of the criminalization of seeing someone in mortal danger without rescue
The reasonableness of any question is that it is self-evident truth, but coincides with a particular temporal and spatial context. Similarly, the regulation of criminal law does not save the behavior of the reasonableness, nor is the behavior itself in the initial state of the violation of the criminal law to protect the legal interests, but should be in the current social conditions, criminal law should be included in the scope of regulation, which is necessary. The existence is not all reasonable, but the necessary means reasonable. Therefore, if the current society needs criminalization of seeing someone in mortal danger without rescue, then the fact that criminal law rules do not save the behavior is reasonable. We can from the point of view such as historical tradition, social needs and judicial practice to study the rationality of the problem.
1) China has a history of punishment for those seeing someone in mortal danger without rescue The Chinese nation has the courageous good tradition of virtue, the ancients have realized that the bad mood will not help save the stability of society will be affected, so see the endangered behavior is not allowed for ancient society. According to the scholars of the study, the ancient Chinese to see those who do not save the first punishment can be traced back to the Qin Dynasty. Scholars of the Qin Dynasty legal bamboo slips to organize and published the «pirate to the tomb of bamboo», a book, the book «law Q & A» articles are recorded in the Qin Dynasty if there are thieves home will be wounded, the owner for help, Neighbors are not at home can be exempted from punishment, but if the neighbors at home without rescue should be punished. In addition, the Han Dynasty, the Tang Dynasty, the Song Dynasty, the Ming Dynasty until the Qing Dynasty also have to see those who do not save the punishment. It can be seen that our country has a historical tradition of punishing those who are not in danger. The tradition has not disappeared in ancient China because of the change of dynasties, which shows that similar provisions are accepted by the masses and will be treated And will not exceed the scope of citizen's knowledge.
China's ancient people stressed that moral education, they believe that save people in the crisis is the norm, so people are more willing to consciously fulfill the obligations as a relief. It is undeniable that the influence of the «economic man» thought in modern times has been different from that of the ancient «moral person», and it is difficult to regard this moral obligation as a criminal law obligation. But it is undeniable that the impact of our historical tradition on today's society makes it impossible for us to be completely divorced from the «moral person», not to mention the fact that living in the social community can not make us a real «economic man». Specifically, we should be both «economic man» and «moral people» common attribute of the «social people». As a «social person», in order to social harmony and stability to bear the necessary social responsibility is due.
2) The appeal of the masses is an objective basis for the criminalization of seeing someone in mortal danger without rescue.
Spinoza once said: «The law is either due to physical necessity, or because of personnel orders». In the field of criminal law, the physical must be understood as the provisions of natural prisoners, and personnel orders can be understood as legal The provisions of the guilty. Although there are many criteria for the distinction between natural and legal offenders, it is also possible for some scholars to say that «we can distinguish between two different standards according to different needs». From the relationship between law and morality, the difference between natural and legal offender is that the act is defined as whether the crime is based on the violation of ethics. A natural offense is a violation of ethical morality, and the criminal law considers it necessary to prescribe a crime. Different regions of different regions due to the understanding of the public there are differences, the scope of natural offenders will change. In other words, see whether or not to save is a natural crime, to a certain extent depends on the understanding of the community. Through the study of the comparative law can not be found, from the ancient times to see the danger is not to save that crime, to the modern times do not save the non-criminalization, and then to the modern countries will continue to save the crime, Knowledge of the community as the basis. In view of this, our country can not help save the crime can not depend largely on the current level of public awareness.
The Catherine Genovese case awakened the hearts of Americans, and the Joey Levick incident eventually led to a lack of access to the state of law in Washington State. China's similar examples are not uncommon, Shenzhen elderly area fell no one as suffocating death events, Foshan Wang Yue event, etc., each event are tortured the national conscience, are all people heartache. Although these events have not yet made the trouble to open the door to open our criminal law, but these events have opened some people's hearts. It is widely believed that these acts should be condemned in public, and there are many mass proposals that will not be saved. It can be said that the current domestic crisis does not save the crime has a good social foundation.
3) criminalization of seeing someone in mortal danger without rescue is the need to solve the judicial difficulties.
Let's start with a judicial case. May 25, 2007, Huzhou City, Zhejiang Province, Zhou theft of bikes were arrested and others Yanyou, Yanmou and others to let Zhou bitter bites to beat them, Zhou to avoid the assault fled to the terminal cargo ship, Hanmou and others pursued, Zhou mighty jump river to swim to the other side, but its physical strength does not drown. Yan Mou and others see no rescue, their departure. The court that Yan and others have a relief obligation and not rescue, constitute intentional homicide, but the truth after the three cases can be discretionary light punishment, then sentenced to three different periods of imprisonment.
In the case of non-criminalization of the case, the case can only be analyzed from the traditional point of view of the omission, then the source of the act as a source of obligation will be the key to the case. From the point of view of formal obligation, we can only find the way out from the obligations arising from the act of precedence. This obligation refers to the behavior of the perpetrator of the criminal law to protect the social relations in the dangerous state, the perpetrator has the risk of excluding the risk or to prevent the occurrence of the obligation. In this case, Han and others beat Zhou's behavior can produce their drowning duty on Zhou is a question worthy of discussion. First of all, the risk of beatings is only based on beating and may cause life damage, does not include drowning. Therefore, if the Han and others beating acts as a first act, the resulting relief obligations should be limited to beating behavior caused by life damage, and should not include their own jump into the water caused by drowning risk. Of course, some scholars will think that if there is no beating behavior, Zhou will not dive, if not diving will not have the risk of drowning, Hanmou and others will have a relief obligation. In this way to explain, we can also say that if Zhou did not steal cars, Hanmou and others will not be beaten Zhou, Zhou car theft because of life forced...... then anything will be linked between, by The conclusion is clearly absurd. Moreover, diving is not the only choice at week, although drowning and beating there is a causal relationship between, but not a substantial causal relationship. Therefore, it is unreasonable to act as a prerequisite for the creation of drowning relief obligations, and such interpretation will lead to the proliferation of criminal responsibility.
Similarly, from the perspective of substantive obligations can not find theoretical support for the decision. Chinese scholars to amend the traditional substantive obligations that the scope of the first act of the substantive restrictions for the first act to provide a clear standard of judgment. In the first place, the first act should be the risk of the creation of behavior; Secondly, the first act should be with the damage between the results must exist risk associated. Based on this judgment criteria, the same can not be drawn Han and others have the obligation to rescue. Because the beatings did not create the risk of drowning, although the risk of drowning and beating behavior have a certain relevance, the reasons for the risk of retrospective, or the victim's own mistakes. Even if we do not consider whether the behavior created the risk of drowning, the degree of association between the result of the drowning and the beating is only a matter of chance, and we can not conclude that they have a relief obligation to the parties.
Thus, judgments from the formal obligations or from the substantive obligations, the judiciary seems to be defective for the case, from the existing criminal law theory, we are difficult to find other reasons to support the decision. However, the judge made such a referee is not blind, indicating that similar acts do have social harm. But the law should be clear, especially in criminal law involving personal freedom. People have to pass the provisions of the Criminal Law to predict whether their behavior is legal, there is no clear provisions, people can not judge the legitimacy of their behavior, if at this time still punish their behavior, it will cause the situation of vegetation, is not conducive to the free development of society. For the time being, whether or not the above case is a proper question, it at least shows that part of the crime is not a crime. Therefore, in order to avoid the difficult to find the basis of the case, the part of the crime will not save the crime will be a reasonable choice.
Second, see the decision not to save the behavior.
Will not see the crime of saving the crime, not all do not save the behavior as a crime. If not with the distinction between all the non-saving behavior is fully included in the scope of criminal law regulation, then each citizen may be unconscious in violation of the criminal law, the consequences of this self-critical is obviously unreasonable. In fact, it is not a question of the need for criminalization, but what is the meaning of criminal law.
- the scope of the «dangerous».
See the danger is not saved, from the literal point of view is to see the danger of not to help, to determine whether a particular behavior is not see the behavior, if there is no certain objective criteria, then the legal rules do not save the behavior will be no reason Words. Based on the stability of the law, the law regulated behavior must be based on a certain objective criteria and the formation of the type of behavior. Of course, the objective standard is not a layer of the same, in different backgrounds of the content will also be different. Criminal law as the last barrier to safeguard the interests of society, the regulation of the situation should not be saved as the minimum range of the law, the judge should also be the highest standards.
The understanding of «danger» will have a direct impact on the scope of the crisis. In particular, not all dangers can be a «danger» that requires criminalization, and that only the interests protected by the criminal law are at risk of being «dangerous». The benefits involved here will include national interests, social interests and personal interests. In the case of personal interests, the criminal law does not protect all the rights and interests of our survival and development. Moreover, the criminalization of the crisis is the traditional moral obligation to rise to legal obligations, the law, especially the criminal law should not be strong, so only the human life As a view of the behavior does not save the point of view is a reasonable choice. Similarly, for social interests and national interests, only with the human life will have a considerable social stability and national stability into the scope of non-rescue is a reasonable choice. Therefore, what we call «danger» should be limited to the danger of serious endanger human life or national and social stability.
It should also be emphasized that the above risks should also have some urgency or urgency. Lack of urgency restrictions, see the scope of non-rescue is also unreasonable. For example, a patient suffers from life-threatening cancer but can not pay for medical expenses, and if there is no urgency limit, it is clearly unreasonable for the doctor to have no relief. It is because the cancer is not urgent, so it ruled out such a situation can not become a doctor to see the behavior does not save the point of view. It can be seen that the requirement for urgency is indispensable for the determination of the scope of the danger.
- see the end of the determination of the scope of the main body.
It would be the focus of the group on the question of which people should be included in the group, which would mean that the criminal law would set new legal obligations for certain groups. Difficult to save the different understanding of the decision to determine the scope of the main body there are differences. If you understand from a broad sense to see the endangered, then all those who know the interests of the above-mentioned interests will be fulfilled the obligation to rescue, or will not violate the criminal law. In other words, in this case, any natural person with the ability to act is likely to become the main body. From the point of view of maintaining social order, such a provision seems reasonable, but it is unrealistic to force each citizen to fulfill its moral obligation in the current social context. As the scholar has said, it is stipulated in the existing social conditions Legal sanctions are too advanced and lack the legal basis. Therefore, it is necessary to understand from a narrow sense to see the endangered, the scope of its subject within a reasonable limit.
At present, scholars in favor of the crisis do not save the crime of scholars, there are two kinds of understanding see the way to save the main body of the way. One is that the subject is not limited to a particular group, for example, some scholars believe that the main body should include three categories, that is, the staff of state organs engaged in public duties, engaged in specific occupation of the staff and because of certain facts or Legal reasons for the formation of a closer living community. The other is the relative to the above, the subject is limited to a specific group in addition to the general body. It is not difficult to find that the latter limits the same scope as the question of setting the moral obligation prematurely as a statutory obligation. In contrast, it would be more reasonable to limit the subject to the particular group. So, how to delineate this particular group will be the key to the problem.
We believe that the main body of the insecurity should be a person who has a substantive relationship or a close connection based on the domination of the premises, based on factual or legal reasons. Some people will take the sociology of the «six degrees of separation» theory questioned, but we call the relationship is not arbitrary. On the one hand, the subject may be a person who, based on facts or legal reasons, has a substantial relationship with the dangerous legal interests. On the other hand, the subject may also be a person who is in close contact with the place where the risk is established. The substantive relationship here is well understood, but what kind of contact is the problem of close contact is worth exploring. In fact, the connection can be determined by the venue of the case. What we call a dominated venue is a space that can be freely controlled by the subject, such as a house, a motor vehicle, etc., and the close contact can be determined by whether the case can be freely controlled by the subject.
It is worth noting that this relationship should exclude the existing relationship between the existing criminal law theory. Part of the crime will not save the crime of crime, then it should be committed. At present, the source of the obligation is not divided into four categories according to the provisions of the Criminal Law of China, that is, the obligations stipulated by the law, the business or business required by the business, the obligations arising from legal acts and the obligations arising from the act. Therefore, what we call the relationship should also be to exclude the relationship arising from the above four types of obligations.
Of course, even those who have a substantive relationship with the dangerous legal interests on the basis of factual or legal reasons are not practicing relief, nor do they necessarily establish what we call Because if the rescue act is not possible, the law should be exempted from its relief obligations. In other words, that is, see death do not save the behavior should have the possibility of expectation. It will be legalized, and it should be noted that the law should not set too high a demand for it. Because if the law requires that it is extremely unreasonable to fulfill this moral obligation, regardless of their own safety, the heroism that comes forward is not encouraged by criminal law. Therefore, it is reasonable to expect the expectation at this time to be lower than that of other non-act. How to rule out the possibility of not expect the situation does not save the behavior, we will be discussed in detail in the next section.
Therefore, the need for criminalization should be considered as a matter of fact that human life or the stability of the state and society is threatened by urgency, based on factual or legal reasons with the legal interests of the legal relationship or a substantial basis The establishment of close contact with people, can rescue and no rescue behavior. In other words, the behavior should meet the three basic conditions, that is, the specific legal interests of the urgency of danger, with the obligation to rescue people deliberately do not help, the rescue has the possibility of criminal law expectations.
Third, the protection of the defenders.
To explore why many people in the current society do not want to help people in distress, we will find that not all are caused by indifference, largely because of people there are many doubts. It seems necessary that these concerns seem to be changing since the question of «no help» in our country. Therefore, it would be necessary to properly deal with the adverse consequences of the fulfillment of obligations as if it were not to be criminalized. Only to fulfill the adverse consequences of the obligation to be excluded, citizens can be assured to fulfill the obligations as bold. Otherwise, even if the citizens of the rescue behavior has a voluntary heart, but also because of imperfect provisions make it into a law-abiding move. So what adverse consequences and how to deal with it as a matter of obligation will be a matter of concern to us.
First of all, citizens are dangerous to the third person in order to fulfill their obligations, and whether such circumstances are required is clear. The nature of the problem is undoubtedly the issue of emergency hedging, because both in order to fulfill their obligations or to protect the legal interests are in line with emergency hedging preconditions. Therefore, as long as the risk does not exceed the unnecessary limits should be allowed. In fact, the new problem arising from this problem will be the key here, that is, whether the risk of a third person is also a matter of relief. We believe that it is not advisable for citizens to continue to fulfill their salvage obligations at this time. The implementation of the obligation to salvage at the same time produced a new relief obligations, equivalent to not fulfill the obligations, such a result is difficult to allow citizens to accept, will also seriously combat the courageous enthusiasm of citizens. It would be extremely unreasonable to continue to require citizens to fulfill their salvage obligations, since it was not only a failure to give citizens the obligation to fulfill their obligations, but the design of new salvage obligations was a negative assessment of their behavior. Therefore, such obligations should be provided as exemptions obligations, as a guilty of the crime.
Second, because the rescue but framed how to deal with the situation will be very concerned about the rescue. In order to avoid the emergence of such a situation, it should be limited from the perspective of the rescuer. Will not help save the crime, although the rescue behavior will become the obligation of the salvor, but this does not mean that the rescuers should be rescued. If the rescuer is not only grateful but framed the salvor, such behavior can not be tolerated by the community. Therefore, it is necessary to treat the framed bailiff's behavior as a crime at the same time.
But if the salvor due to the bailout and make the rescuer into a greater risk, then how to deal with the rescue will be more concerned about the problem. It is undeniable that the rescuer should have some duty of care in the rescue, but if we give the salvor to set too high duty of care will seriously combat the rescue of the rescuer enthusiasm. No one is willing to bear the risk of doing a good thing but may be punished. Furthermore, it is possible to consider from the perspective of the rescuer whether it is willing to take the risk of bailout but may be flawed or willing to take the risk of no relief at all. The answer should be yes, if the choice of the latter is the probability of being rescued is zero, and the choice of the former is the probability of being successful at least 50 percent, or at least there is the hope of being rescued. Therefore, the existence of flawed relief should be regarded as the implementation of the obligation to rescue, the resulting adverse consequences should not be allowed to the salvor. Only in this way can it be possible to eliminate the concerns of the salvor in fulfilling the relief obligations.
Finally, at some point the rescuer may be able to bring his own danger when he or she fulfills his salvage obligations, and whether the rescuer should continue to perform his salvage obligations. In order to avoid the possibility of law enforcement at this time when we face our own risk, we believe that the implementation of the obligations should be diversified and the requirements for performance of obligations should be reduced. For example, we can provide for timely reporting or mutual assistance to others as a matter of obligation, which not only reduces the risk of fulfilling the obligations in certain circumstances, making it easy for the obligor to fulfill its obligations, but also because of the simplicity of the obligation The obligor is more willing to be courageous.
It is certainly a good choice to fulfill both the obligation and the danger, but in some cases, even if a number of forms of obligation are fulfilled, it is not possible to avoid the danger of the obligor fulfilling its obligations. We believe that the obligation of citizens should be waived at this time, and it would be inhumane to continue to require citizens to fulfill their obligations at this time. Criminal law to the citizens of the positive obligations should be based on their behavior will not cause their own life risk as a prerequisite, if through a variety of ways can not avoid the performance of obligations will lead to danger, only the exemption is reasonable.
Fourth, the legacy of the problem: see the crime does not save the crime and criminal law modesty does not conflict.
The biggest criticism of the criminalization of the criminalization is that there is a possibility that the principle of modesty of criminal law is violated, so it will be an unavoidable topic. The modesty of the criminal law means that the criminal law should obtain the greatest social benefit through the minimum expenditure, that is to say, the use of non-punishment measures can effectively prevent and control the crime. From the perspective of criminal modality, any problem that can be controlled by other means should not be regulated by criminal law, and criminal law can only be the last resort. Those who oppose the crisis of crime are often the starting point, arguing that the crime of criminalization and criminal law is contradictory, they think that the crisis can not be saved and can be regulated by other laws, there is no need to start criminal law, And if the rules of the criminal law do not save the behavior will be too much interference with the freedom of citizens.
In fact, it is not necessarily contrary to the modesty of criminal law, as long as the criminalization of the non-saving behavior is controlled within a reasonable range, the same in line with the principle of modesty of criminal law. It is extremely unreasonable to oppose the crime of not saving the crime in order to violate the principle of modesty of criminal law. In the past, we have identified the scope of the crime of not saving the behavior, the behavior is not suitable and there is no reason to become civil law or administrative law involved in the scope of the criminal law will be the only choice. Society is through the association between people and the formation of interdependent community, when the degree of association with the more closely, the community will be more stable. In order to guarantee the stability of the society, some important associations must be the content of legal regulation. States and regions have enacted laws and regulations on rewards and the protection of courageous officers, with the aim of maintaining a general association between people in a positive respect. If the law is adjusted, from the perspective of maintaining social stability, only the choice of criminal law to achieve the effect. Therefore, the principle of modesty of criminal law is not to prevent the crime of non-saving behavior of the reasons for the crime, but the impact of criminalization of the factors that do not save the scope of the situation.
Of course, we have to admit that the failure to save the crime will inevitably limit the freedom of citizens, but this is not enough to become a cause of obstruction. Because all the freedoms of the people are not sacred and inviolable, the constitutional protection of civil liberties requires that citizens should abide by social morality and criminalize a reasonable range of insecurity and does not necessarily lead to violations of citizens. Moreover, freedom is relative, as members of the community members to enjoy the rights at the same time, should also assume a certain degree of social responsibility, a major moral lack of social responsibility is not responsible for the performance of criminal law to force citizens to bear the necessary social obligations and No hardships.
Finally, we believe that the modesty of criminal law is not entirely reflected in the legislative level, the same should be implemented at the judicial level. Although the criminal law modesty can control the application of the penalty from the source of the subject, but it has serious rigidity, and the judicial level of criminal law modesty can avoid this regret, better reflect the criminal law of humanity. Therefore, we will see that we do not save the sentence, and we can avoid the curiosity of the criminal law by implementing the judicial level and avoid the many doubts of the scholars. If the legislative level is too much emphasis on criminal modality, and some of the criminalization should be excluded from the criminal law, then the judge will fall into the law can not meet the needs of society and meet the social needs will deviate from the legal embarrassment of the situation.
- Zheng Xianwen: Ancient China on the courageous legislation, contained Chinese and foreign law, 1999 sixth period, p. 83.
- Dumbbells Qin Tombs Bamboo Slips Group: Dugu to Qin Tomb Bamboo Slips, Cultural Relics Press, 2001 edition. Which law Q & A article records: thief into the room, thieves injury A, a number of Kou, its neighbors, Code, the old are out of no money, not the name of Kou, ask when improper trial?
- First aid: change the fight to kill the prison neighbors. The law of the Tang Dynasty: the neighbors were robbers and murder, but not rescued, stick 100; smell and not rescued, minus one.
- Song criminal system: the pursuit of sinners and the force can not system, told the road pedestrians, their pedestrian can help, and not help, stick 80. Potential not help those who do not.
- The law of the great law: Where knows the companions who want to commit others, not to block, ambulance, and after the victims, not the first person, a hundred stick.
- Daqing law passed test: robber robbery, Neighbors and no association, the stick eighty.
- The Economist is derived from Adam Smith's Wealth of Nations, which emphasizes selfishness, and all actions of man are motivated by their own self interests. In contrast to this is the «moral person», which originated in Adam Smith's «moral theory of morality» in the idea of emphasizing behavioral altruism.
- Zhang Mingkai: Natural prisoners and legal offenses under the legislative system of substantive interpretation», contained «legal business research, the fourth issue of 2013, p. 46.