摘要
当营救者明知存在风险,但仍然对由行为人所威胁到的他人法益进行救援,并因此导致自身法益遭受损害时,并非一律自负其责。倘若营救者是基于法定救助义务,或者是在没有更佳选择的情境中为了保护相比自身危险更为重大的利益,抑或是为了挽救自己近亲属的生命、身体或重大人身自由法益而不得已施行救援行为,就不应对由此导致的自身法益损害承担责任。在其他情形下则应当肯定营救者自我决定地负担了风险,适用自我答责原则,因而不能就营救者自身的法益损害结果追究行为人的刑事责任。
The principle of self--responsibility in criminal law means that the perpetrator is not responsible for the damage of the victim when the latter, despite being aware of risks, goes into danger voluntarily. However, this does not indicate that the rescuer, with full consciousness of the related risks, is always responsible for his actions when he tries to save the interests of others and causes damage to himself. There are three situations in which the rescuer should not be re- sponsible for the occurrence of damage. First of all, if the rescuer has legal obligations of rescue, then the perpetrator is responsible for the damage of the rescuer. In this case, the rescuer is forced by the lawmaker to save the interests of others which would be harmed by the perpetrator. He has no other choice but to take the action to protect oth- ers. In this sense, the rescuer does not accept the risk of rescue voluntarily and the principle of self--re- sponsibility can therefore not be applied to him. The range of legal obligations should be ex ante deter- mined through an ＂interests--risk balance＂ in concrete cases based on the sort of obligations and the the- ory of probability of anticipation. Secondly, the principle of self--responsibility is not applicable to the rescuer either, if the rescue takes place with the intention to protect the interests of others which are more valuable than the loss of the rescuer. This is a conclusion from the comparison with the defense of necessity. Lastly, the rescuer should also not be responsible for the occurrence of damage if he tries to defend his family members from death, heavy injury or deprivation of freedom. Because in this situation the rescuer is, as a result of lacking free will, not responsible for his decision. In other cases, the principle of self--responsibility should be applied. That means the rescuer ac- cepts the risks of rescue voluntarily and is therefore responsible for his damage. On the other side, the perpetrator, who commits an illegal act and thereby puts the interests of others in danger, is no longer li- able for the damage of the rescuer. According to the conclusion above, the principle of self--responsibili- ty is applicable to the firefighter in the CCTV fire case who gave under extremely dangerous situation his respirator to the person entrapped in the fire and therefore died from gas poisoning.
出处
《法学研究》
CSSCI
北大核心
2010年第3期26-41,共16页
Chinese Journal of Law
关键词
央视大火案
自我答责
作为义务
期待可能性
紧急避险
self--responsibility, duty of act, probability of anticipation, defense of necessity
