On the ' Garantenstellung ' of the ' unechten Unterlassungsdelikte '
| Autor: | WANG, CHAN-SHING, 王展星 |
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| Rok vydání: | 2018 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 106 There are many disputes over the “unechten Unterlassungsdelikte” in the criminal law. The most basic and most important issue is the judgment of how to determine the “Garantenstellung”. The legal basis and classification of “Garantenstellung” in the field of criminal law at home and abroad can be said remain controversial. So far, no conclusion has been made. This article attempts to explore and analyze the evolution and legal basis of the “Garantenstellung” from the perspective of normative criminal law, and adopts the research methods of the literature discussion method and the comparative research method to carry out a more abstract and generalized overall discussion mode, with emphasis. Organize and analyze the legal basis and related doctrine of the “Garantenstellung”. In the research structure, it is to study the historical origin, evolution and substantive process of “As an obligation”, and then to discuss the content of the “Garantenstellung” theory at home and abroad and related doubts, and finally put forward the “Garantenstellung” advocated by the individual theory. Based on the Luhmann’s System Theory, and the constitutional value of liberalism, the core idea of “Harm Principle” of “do not infringe on the interests of others” and “protect the interests of others when necessary” is to “prohibit and avoid the benefits to be damaged”. Therefore, the requirements of the criminal law norms for “negative obligations” and “positive obligations” are based on a behavioral expectation based on the “Harm Principle”. Therefore, this research argues that the nature of criminal law, whether it is the “Begehungsdelikte”, or the “unechten Unterlassungsdelikte”, is the most general “prohibition norm”. However, judging from the nature of criminal law obligations or the existence of crimes, the “unechten Unterlassungsdelikte” is another type of crime that is independent of the “Begehungsdelikte”. Therefore, this article believes that the “Garantenstellung” of the “unechten Unterlassungsdelikte” is to reconcile the normative mechanism designed by the conflict between positive obligations and freedom to act. In order to construct clear judgment criteria, we should consider the criteria of “legal protection needs to be observed from normative purposes” and “there is a certain degree of dominance of legal interest”. Through checking the three special requirements of “special status or relationship based on the purpose of protection of legal interests”, “special status or relationship must have meaning to legal interest” and “the actor must have a certain close relationship with legal interests”, it is possible to determine whether established or not the “Garantenstellung”. In this way, in addition to allowing the “Garantenstellung” to have a substantive legal basis, it can also be operated through the mechanism of “Garantenstellung”, so that the scope of establishment of impure inaction is restricted, and the concept of abusing positive obligations shall be avoided, and various forms of inaction are expanded. The possibility of establishing a crime creates a high degree of malpractice that over-compresses the freedom of movement of all members of the social system. The discussion above this article proposes its own theory of “Garantenstellung”, which is also the “Normative Domination Theory”. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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