论强令、组织他人违章冒险作业罪的归责理念

Discussion on Idea of Assigning Responsibility for Crime of Forcing and Organizing Rule-violating and Risky Operations

In practice, the judicial application of the crime of forcing and organizing rule-violating and risky operations was confusing, which stemmed from the long-term obscurity of the idea of assigning responsibility of the crime. Drawing on the achievements of the doctrine of foreign criminal law, three schemes for the imputing mode of this crime might be imagined, namely, the supervision or management fault, the organization fault or the negligent co-principal offender. And in the scheme of negligent co-principal offender, there were three different theories such as “causality co-theory”, “duty of care co-theory” and “cognition possibility co-theory”. In order to avoid the prevaricate, the crime could be attributed based on the possibility of the related subjects' joint foresight of the same consequences of legal interest. Simultaneously, in order to prevent the liability of this crime from being generalized, the “violation” in this crime could be understood as a category with dual attributes: formally, the “violation” took the rules and regulations of the production unit as the main body, supplemented by the national production safety laws and regulations. At the other hand, substantively, “violation” would be a violation that had the specific possibility of causing the accident consequence of legal interest infringement, which was usually manifested as a specific violation of the risk obligation or the multiple interwoven guarantee obligation.

实务中，强令、组织他人违章冒险作业罪的司法适用十分混乱，这源于该罪在归责理念层面长期晦暗不明的状态。借鉴域外刑法教义学成果，对本罪的归责模式或许可以设想出监督或管理过失、组织体过失或过失共同正犯三种方案，其中过失共同正犯方案又存在“因果关系共同说”“注意义务共同说”与“认识可能性共同说”的理论分歧。为了避免相关主体因责任分担不明而事后相互推诿，可基于相关主体对同一或相同法益后果的共同预见可能性，对本罪进行归责。同时，为防止本罪的归责过于泛化，可将本罪中“违章”理解为一个具有双重属性的范畴：形式上，“违章”以生产单位的规章制度为主体，以国家安全生产法律法规为补充；实体上，“违章”是具有引起法益侵害的事故后果的具体可能性的违规行为，它通常表现为对风险型义务或是被多重交织的保障型义务的具体的违反。