摘要
体育竞技伤害行为的刑法规制纷争缘起刑法规范与行业规则的优先适用,聚焦体育竞技伤害的特殊内容与普通伤害的差异,争执规则侵害和正当业务致损的偏差,陷入体育竞技伤害正当化事由之判断标准和裁量主体的理论分歧,面临正当化事由违法阻却阙如刑法规定的技术难题。溯源刑法惩罚的正当性,体育竞技伤害的刑法规制应当执基罪过原则,载荷大众情感,依托现有罪名,在综合考量公众意愿的基础上,根据行为人主观罪过的内容及其实现程度判定体育竞技伤害的罪与非罪、此罪与彼罪。体育竞技伤害的刑法规制以公众认同为价值标准,以罪过权衡为技术圭臬排除竞技过失行为的入罪认定,合理区分民法上的过失和刑法上的过失,有效甄别合规过失和违规过失之间的民法和行政法界限,理性阐释合规过失伤害和违规故意伤害推定的正当性,洞彻合规故意的举证责任倒置。
Complication of criminal law concerning injuries induced in competitive sports is largely due to priority of applica- tion between industry codes and relevant laws. Focus shall be directed into the gap between specific content of the said injury and common sort of injury. There is blindness on discrepancy between injury induced in normal business conduction and en- croachment. Therefore, inclination is there into conflict between criteria for judgment of legalization of the said injury and the main body of discretion. Technical problem is also included the coping with how to set threshold for legalization. Through tracing back the origin of criminal punishment, injuries induced by competitive sports shall be liable to legal punishment which is based on presented case law,take into account of folk feeling and give the verdict with the concerned＇s will to judge whether it is guilty or not. Folk agreement should be criteria to create criminal code for the said injury. Meanwhile, the affir- mation of the guilty shall be based upon technical judgment to exclude negligence in competition. It is also important to dis- cern the gap between fault defined in civil codes and criminal codes, through which the boundary between legal and illegal fault could be identified.
出处
《西安体育学院学报》
CSSCI
北大核心
2018年第1期28-35,共8页
Journal of Xi'an Physical Education University
基金
国家社会科学基金青年项目(16CFX025)
关键词
竞技伤害
刑法规制
正当化事由
罪过
公众认同
competitive sports injury
criminal punishment
the reason for legitimation
sin
the recognition of the public
