注意义务阻却事由之探究

信赖原则与允许危险原则在德国经由判例逐步占据稳固地位,后又传入日本,在西方被广泛适用。信赖原则强调在适当的场合,行为人与他人之间相互存在着可以寄托于对方对于履行必要的注意义务的信赖,过失责任在于未履行信赖所要求的注意义务的一方;允许危险原则注重在适当的场合,允许行为人实施一定限度以内的危险行为,对此行为人无过失责任。与注意义务的赋予不同,信赖原则与允许危险原则通过对于行为人注意义务的否定,进而否定(阻却)行为人的过失责任。在我国科技发展的今天,理论上系统地构建信赖原则、允许危险原则的基本观念,实践中有意识地注重信赖原则、允许危险原则的具体运用,符合刑法的时代要求。

A Study of the Negation of Duty of Care

The principles of reliance and necessity first gradually took root in German law by cases and was introduced into Japan and then widely applied in the West. The principle of reliance stresses that under appropriate circumstances, there is reliance on the other persons for the implementation of duty of care between the actors and other persons, whereby liability for negligence lies with the party who fails to exercise duty of care. The principle of necessity stresses that under appropriate circumstances actors are allowed to execute dangerous acts beyond certain limit where the actor is free from liability for negligence. Different from the duty of care endowment, the principle of reliance and the principle of necessity negate the liability for negligence on the part of actors by way of negation of the duty of care on the part of actors. Currently in view of the scientific and technological development in China, it is in keeping with the requirements of the criminal law of the times to systematically build up the principle of reliance, the basic concepts of principle of necessity and consciously observe the principle of reliance in practice, and the actual implementation of the principle of necessity..