软家长主义下积极安乐死的刑事治理轻缓化路径

The Mitigating Path of Criminal Governance for Active Euthanasia under Soft Paternalism

  • 摘要: 积极安乐死虽然在国外立法和我国舆论中不乏支持声音,但是我国立法和司法实践仍然持保守态度。我国刑法对待积极安乐死行为仍然以故意杀人罪论处,持有罪的态度是基于法律家长主义管控下限制人们自我决定权的结果。但是法律家长主义随着时代变迁与理论深化,正在走向软家长主义。对待积极安乐死问题虽仍然不能无罪化处理,但基于我国社会现实和法律特点,可以在司法评价中通过量刑轻缓、缓期执行等方式表达法律对积极安乐死的否定性评价与值得宽宥的倾向。

     

    Abstract: Although there is supporting voice towards active euthanasia in foreign legislation and Chinese public opinion, China's legislation and judicial practice still hold a conservative attitude. China's criminal law still treats the act of active euthanasia as intentional homicide, and the attitude of holding that attitude is according to the result of restricting people's right to self-determination under the control of legal paternalism. However, legal paternalism is moving towards soft paternalism with the change of time and deepening of theory. Although the issue of active euthanasia still cannot be treated as innocent, based on the social reality and legal characteristics of China, it is possible to express the negative evaluation of the law on active euthanasia and the tendency to forgive it by means of a lighter sentence and suspended execution in the judicial evaluation.

     

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