试论对业务过失犯罪的处罚

本文对目前理论上和立法中关于业务过失犯罪处罚的三种观点进行了评析,并提出了处罚业务过失犯罪的新标准.作者认为,主张对业务过失犯罪的处罚应当轻于普通过失犯罪的观点,以及主张取消业务过失犯罪处罚,代之以重大过失犯罪和普通过失犯罪并设置相应法定刑的观点,都是不合适的.主张对业务过失犯罪加重处罚的观点,从结论上看是基本正确的,但过于绝对化.关于业务过失犯罪处罚的正确观点应当是第一,在通常情况下,对业务过失犯罪的处罚应当重于普通过失犯罪;第二,当某些普通过失犯罪表现为行为人公然违反法律的禁止性规定,而行为的客观危害性并不小于业务过失犯罪时,对业务过失犯罪的处罚应当等于或者轻于普通过失犯罪.

On the Punishment of Crimes of Vocational Negligence

After discussing three ideas about the punishment of crimes of vocational negligence now existing in the jurisprudence and legislations, the author puts forward a new theory about the punishment of crimes of vocational negligence. In his opinion, the idea that crimes of vocational negligence should be punished less severely than crimes of ordinary negligence is undesirable, nor is the idea that the special provisions about the crimes of vocational negligence and their punishment should be replaced by the provisions about crimes of gross negligence and their punishment. On the whole, the idea that crimes of vocational negligence should be severely punished is right, but it is too absolute. The author thinks the following rules should be considered about the punishment of crimes of vocational negligence : first, in common circumstances, crimes of vocational negligence should be punished more severely than crimes of ordinary negligence; second, when some crimes of ordinary negligence are presented as the doers violating the prohibitive regulations openly and their extent of harm is not less than that of the correspondent crimes of vocational negligence, crimes of vocational negligence should be given the same or less punishment as those crimes of ordinary negligence.