不作為犯的參與評價

Abstract

本文所欲探討之「不作為犯之參與」議題，其主軸必然涉及刑事法學界對於「不作為犯」處罰基礎理念之思想脈絡，而對於不作為犯之相關思考，近年來德國具有代表性學術見解均已就長久作為基礎理論之「保證人地位理論」提出相當質疑，並重新架構具有獨立體系之詮釋方法，進而使本文所欲探討議題具有再經檢驗必要。其次，近代社會犯罪逐漸趨於多工，亦存在許多由國家設置保護義務以進一步保護法益之相關義務，例如國家機關對於產品之安全檢查、醫師之定期健康檢查、車商依法之定期安檢等、證券主管機關對於特定行為之監督責任，凡此種種作為義務於個案上之累加，均將導致本文所欲討論議題於日後發展上之重要性、複雜性，而使本文議題回歸值得討論、研究之對象。本文並於分析既有國內外學說實務之見解，並觀察不作為犯與犯罪\n參與理論之當代樣貌與實質內涵之演變後，認為支配理論於不作為犯之處罰基礎界線上，已得做為犯罪參與評價與其溝通之橋梁，並於探討廣義因果關係於不作為犯之參與評價之實際應用後，亦得發覺本文所持之理論基礎有助於以有體系之方式解決學說見解於早期提出之諸多爭議，並得於不牴觸近期學說亦指之前提下，帶動近期學說見解於立論上之一貫性。此外，針對我國最高法院於實務意見長久避免正面回應之不作為犯參與評價之議題，本文透過近期被司法院關注之重要判決意旨，指明該判決於立論上得補充之處，使其引導後續主流見解地位之理論基礎更顯穩固，並得期待透過本文見解，使我國最高法院、實務見解於處理系爭議題上更為積極，以兼顧節制不作為犯之處罰界線，與論理基礎之體系一貫性。

The topic of “omission as a crime“ which discussed in this paper, is related to the thought of the basic concept of “ omission offences “ in the criminal law circle. In addition, the representative academic opinion of “omission offences” in Germany in recent years is raising to a big number. In recent years, the representative academic opinions of Germany have been questioned on the “guarantor status theory“ as the long-time basic theory and trying to\nreconstructed the method of interpretation with independent system, which makes the subject of this paper have the necessity of re-examination. Secondly, the modern society crime tends to division of labor, also there are many obligations set by the state to further protect the legal\ninterests, such as the safety inspection of products by administrative organs, regular health checks by the doctors, regular security checks by salesperson, or the securities for specific acts by competent authority, etc. The accumulation of all these obligations will result in the importance and complexity of the topic discussed in this paper, and the topic of this paper will be worthy of discussion and research.\nAfter analyzing the theory of both domestic and foreign theories and observing the contemporary appearance and essence of the theory of omission offenses and criminal participation, we should think that the “theory of domination” should be regarded as the basis of the participate of omission, and become communication bridge between omission offenses and criminal participation. Meanwhile, after exploring the practical application of the\n“generalized causality” in the participate of omission, we could also find that the theoretical basis of this paper helps to resolve the controversy raised by the earlier theories in a systematic way, and guide the recent doctrine in consistency without prejudice the premise of the recent\ndoctrine. In addition, for the issue of the omission that be long-held by our Supreme Court, this article points out that the judgment could be supplemented by the argument by an important judgment intended to be of immediate concern to the Judicial Yuan, so the judgment that guide the status of mainstream opinion could be more stable. We can also expect that through this article, the Supreme Court of our country will be more active in dealing with the issue of\nomission participation, so as to take into account the punishment of the omission, and the consistency of the system.