EXAMINE THE IMMANENCE OF THE OFFICE OF THE CIVIL SERVICE IN CRIMINAL CODE

• Main Authors: Liao,Chi-Wei, 廖其偉
• Other Authors: LIAO,CHENG-HAO
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/19425556392832212421

碩士 === 國立臺北大學 === 法學系 === 94 === The goal of this thesis is to establish the very important meaning of "Execution of Functions" with its main objective constitutive elements, in the framing of a new decision standard for offenses of interference with public functions as per the narrow sense of Clause (1), Article 135 of the Criminal Law and the main objective constitutive elements of their meaning. As for documentation, in addition to local doctrine and actual cases, we will examine Japanese doctrine and actual cases. We will then do a comparative study of stipulations in Japanese criminal law. We will also select principles and references of Public Law as well as opinions of the Council of Grand Justices, and consider the constitutional framework on which previous master theses in criminal law haven't focused and the concept and structural foundation of unity of law and regulations. Under the three level theory of crime level in criminal law and the frame of reference with its main standardized constitutive elements, Clause (1) Article 135 of the Criminal Law of our country defines the main objective elements of "execution of functions under the law." In fact, before, the offending person was unaware of the doctrine, its interpretation and its foundations. Consequently, the interpretations lead to conflicts between objective and subjective elements. From a public law point of view, to establish the execution of functions, the existence of public authority is necessary, and a judgment system compatible with the three level of crime must be used, this is the focus of the present thesis. In conclusion, "execution of functions under the law" belongs, generally speaking, to legal functions with the key element of public authority, it must be executed by a public servant in a correct manner as provided for by the law. Only then it is "the best interests of society as a whole" that are protected against offenses of interference with public functions as narrowly defined by Clause (1), Article 135 of the Criminal Law. The offending person, because of the differences between objective and subjective elements, must know the external appearance of a public servant and the objective appearance of execution of public functions to establish a characterized illegality. The court must ascertain whether the public servant was executing their function according to the law to substantiate the illegality, it is the only way to conform to the contemporary theory of three levels of crime. Finally, this thesis suggests some revisions to current laws as reference and advice for legislative bodies and future scholars.