肖志军案中的刑法难题和价值取向——不作为、因果关系与间接故意之新界

丈夫拒绝签字导致妻子死亡的行为属于间接故意杀人。肖志军因具有法定的救助义务而成立不作为;刑法应偏向患者利益,在医疗领域中采用风险增高理论来判断因果关系;在拒签时,肖志军认识到了妻子死亡的具体危险性,这决定了他属于间接故意的杀人。在社会救助体制缺失时,刑法期待通过强化个人责任而确立"全力救助患者生命"的价值导向。

The Criminal Law's Problem and Value Orientation in the Xiao Zhijun Case-a new explanationof the inaction,causal relation and indirect intention

The husband＇ s rejection of signing on the operation sheet which resulted in the wife＇ s death has committed a crime of indirect intentional homicide. Failing to perform his legal duty, Xiao committed a negative crime. The criminal law should make a preference for the patient＇ s interest and the causal relation in medical field should be analyzed by the theory of increased risk. When refusing to sign on the operation sheet, Xiao had realized the specific risk of his wife＇ s death, which determined that he had committed the crime of indirect in- tentional homicide. When there is a lack of social assistant system, the criminal law is expected to establish a value orientation of ＂all for saving the patient＇s life＂ by reinforcing personal responsibility