The Study on Aggravated-Result Offense－Focus on Imputation

• Main Authors: Huang, Po-Yen, 黃博彥
• Other Authors: Lee, Mau-Sheng
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/f7x83y

碩士 === 東吳大學 === 法律學系 === 104 === Justification for Aggravated-Result Offense has long be criticized. Especially in terms of its legal effect, the traditional Rule of Concurrence seems to be abandoned while harsher criminal punishment has been imposed. The work aims to seek for its justifying basis via the historical development, and to reinterpret its construction and attribution from the perspective of the contemporary criminal law studies. After exploring the historical development, the work considers the basis for punishment is its “inherent danger（spezifische Gefahr）.” The inherent danger refers to the high risk of aggravated result (death) while the perpetrator commits the fundamental criminal offense, and such risk is beyond the possibility to control. Nevertheless, the mere inherent danger is not sufficient to construct the basis for punishment. The work examines the nexus between Aggravated-Result Offense and the principle of culpability, thus we claim that it is justified to maintain such offense only if the perpetrator is “negligent on an acknowledged basis” regarding the aggravated result. Accordingly, the basis to punish such offense stands on the danger with the requirement of negligence fulfilled. The work calls it “modified danger.” With this perspective, the construction of the Aggravated-Result Offense would no longer be the complex of intention and negligence. Rather, it is one independent type of offense which closely links the intention of the fundamental act to the negligence of the aggravated result. With the basis for punishment and the principle of culpability affirmed, the work starts to seek for the criteria of Aggravated-Result Offense beginning with the aforementioned danger. Referring to the German theory of direct nexus（unmittelbare Zusammenhang, Unmittelbarkeit） and relevant Japanese theories, the work considers that, for such Offense to be established, the “realization of inherit danger” requirement must be met objectively. The realization of inherit danger should be observed through two phases: first, the review of the existence of inherit danger, and second, the determination of the realization of such danger in aggravated result. Hence, in each case, the perpetrator may only establish Aggravated-Result Offense should the objective requirement of the two-phase review and the subject requirement of acknowledged negligence have been met. This is the attribution rule for Aggravated-Result Offense. As to how would the criteria of realization of inherit danger fit in each Aggravated-Result Offense, the type of realization of inherit danger set in each fundamental offense should be ascertained. Also, it should be ascertained whether such fundamental offense contain high risk of danger to infringe the legal interest protected by the aggravated result on ad hoc basis. Thus, different kinds of Aggravated-Result Offense contain different types of inherit danger. The work will discuss several cases so to illustrate how the structure of realization of inherit danger be applied to particular provisions.