危险作业罪的实务观察与理论检视

    Practical Observation and Theoretical Examination of the Crime of Dangerous Operation

    • 摘要: 危险作业罪是立法活跃化背景下的轻罪增设范例,在法益保护前置化的背景下并未导致案件数量的不合理膨胀。从大量实务案件出发反思理论研究,本罪的基本性质、主观罪过等相关争议都可以消弭。将刑事合规不起诉制度作为本罪出罪的重要路径,属于法教义学上的盲目“嫁接”。可识别的“中间危险结果”能够作为“现实危险”判断的重要依据;危险促进因素越突出或危险防止因素越弱化,越容易说明“现实危险”的存在。重大劳动安全事故罪应视作本罪的结果加重犯;针对某危险化学品,行为人既存在危险驾驶罪的“运输”行为,又存在危险作业罪的“生产、经营、储存”行为,宜认定为牵连关系,从一重处罚;无罪经营成品油的案件在本罪增设后,不宜再认定为非法经营罪,正确适用本罪能够合理限缩非法经营罪的“口袋化”倾向。

       

      Abstract: The crime of dangerous operation is an example of the addition of a minor offense in the context of active legislation. In the background of the pre-protection of legal interests, it has not led to an unreasonable expansion in the number of cases. Starting from a large number of practical cases to reflect on theoretical research, the basic nature of this crime, subjective guilt and other related controversies can be eliminated. The criminal compliance non-prosecution system is an important path for this crime to be acquitted, which belongs to blind “grafting” in legal dogmatics. Identifiable “intermediate dangerous results” can serve as an important basis for judging “realistic danger”; the more prominent risk-promoting factors are or the weaker risk prevention factors are, the easier it is to explain the existence of “realistic danger”. The crime of major labor safety accidents should be regarded as an aggravating offense resulting from this crime. In the case of a dangerous chemical, the actor has both the “transportation” of the crime of dangerous driving and the “production, operation, and storage” of the crime of dangerous operation, which should be recognized as an incidental relationship and punished accordingly. After the addition of this crime, cases of innocent operation of refined oil should not be recognized as the crime of illegal operation any more. The correct application of this crime can reasonably limit the “pocketing” tendency of the crime of illegal operation.

       

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