Emotion, Offensiveness and Criminal Legislation: On Limits of Punishment on Offensive Behaviors
| Autor: | Yu-Xian Lin, 林育賢 |
|---|---|
| Rok vydání: | 2018 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 106 Offensive behaviors are those that affront to others and cause their negative emotional states. From the perspective of legal history, offensive behaviors, such as vice crimes or religious offenses, have not been deeply challenged or shaken so far. In Criminal Law, supplementary penal provisions and Social Order Maintenance Act, certain offensive behaviors should be punished by criminal or administrative penalty. Rechtsgutslehre (theory of legal good), supported by common thesis, is not only be criticized due to faintness of its critical force, but faced with the question to its legitimacy when confronting with offensive behaviors. After briefly reviewing these questions in the first chapter, this thesis aims at reviewing the criteria of examining criminal legislation on offensive behaviors. In meanwhile, it also aims to rethink the basic position of Rechtsgutslehre and criminal legislative theory. The second chapter analyzes firstly the history of punishment on offensive behaviors and the understanding of social mechanism of emotional offensiveness. Then, this thesis proposed to offensive behaviors as social mechanism of negative emotions, which results from social conflicts, and the current regulations by state imply maintenance of good order (Bonum Ordinis) as its potential goal. Based on this understanding, this thesis adapted the emotion-restoration oriented “Ex-Post Crime-Settling Function” as the goal of punishment, and by genealogical analysis of conception of substantial crime, it reflect possible approachs to critics of criminal legislation in the third chapter. In the fourth chapter, this thesis will argue “Harm Principle” in liberalist context as fundamental criteria, reinvesting the basic ground of punishment on offensive behaviors, and aims to figure out whether the negative emotions caused by offensive behaviors are candidate for intervention by criminal sanction. In this light of liberal criminal jurisprudence, this thesis will resolve the challenges from the constitutional law and doctrines of constitutional rights, reflects on the deficits of criteria based on constitutional law, and briefly argues for basic proposition of criminal legislative theory. Finally, this thesis will one by one review current regulation on offensive behaviors, including child pornography, sexual exploition of child, religious offense, offenses against sexual morality, offenses against animal protection, offenses against public order and family. It points out what punishments on offensive behaviors imposed by the state will be in doubt if it cannot demonstrated by harm principle and soft paternalism. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
| Externí odkaz: |
|