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竞技运动场上的伤害行为的刑事可罚性,一直以来都是刑法理论中一个不起眼却又值得深入研究的问题。一般情况下,竞技运动伤害行为都被作为一种正当化的行为而排除刑事可罚性,其理论依据有被害人承诺理论、社会相当性理论、正当业务理论的争讼,但这些理论均有着自身的缺陷。应以被害人自我负责原理与允许风险原理共同作为竞技运动伤害行为正当化的根据。并且基于此,当某一竞技运动伤害行为在满足“运动员自我负责性地参与竞技运动中的危险行为”、“运动伤害属于运动之固有风险”、“行为人主观上是以比赛为目的”三个条件时,即为正当化的行为而排除刑事可罚性,反之则有入罪的可能性。
The criminal penalty of injury in competitive arena has always been an unobtrusive but worthy of further study in the criminal law theory. Under normal circumstances, competitive sports injuries are excluded as criminal acts as a justifiable act based on the victim commitment theory, social equivalence theory, legitimate business theory of the dispute, but these theories have their own Defects. The principle of self-responsibility of victims and principle of risk tolerance should be taken as the basis for the justification of competitive sports injuries. And based on this, when a competitive sport injury behavior meets the “dangerous behavior that the athlete participates in the competitive sport in a self-responsible manner”, “the sports injury belongs to the inherent risk of the sport”, “the actor is subjectively Competition for the purpose of ”three conditions, that is, to justify the behavior of criminal penalties excluded, and vice versa there is the possibility of incrimination.