Causation and Criminal Attribution of the Wrongful Collective Decision

• Main Authors: Peng, Wen-Mao, 彭文茂
• Other Authors: Liu, Shing-I
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/04424772423823143619

碩士 === 國立臺北大學 === 法學系 === 94 === In Germany the wrongful collective decision has not been emphasized for a long time until several gradual developing fields of criminal law, such as criminal liability of manufacturers or corporate crimes. In the formal organization, the character of the wrongful collective decision reveals that policy-making is not manipulated by one person any more, but several persons decide on the certain matter jointly. Because not only they have equal positions and same competences, but also they make decisions by holding conferences and voting in majority. These serious problems of the wrongful collective decision are divided into two main dimensions. One of them is involved in the theory of causation in criminal law. According to the theory of necessary condition (conditio sine qua non), if we did not take the overflowing votes into consideration, then the wrongful decision would be still made, so that we would obtain a ridiculous answer: the causation between overflowing votes and the result of the wrongful decision has not been justified. In other words, the persons whose votes regarded as overflowing ones were not responsible for the crime. Are there something dubious in the theory of causation? Or we can set this question in different and positive way: How could we regard the participation of each colleague as its special connection to the collective decision? Another dimension is the problem of perpetration. In the process of decision making no one can depend upon his own power to rule over the certain agenda and final result, but he should rely on his colleague to achieve his goal by majority of voting. Are these offenders qualified as individual perpetrators or conspirators? The solution of this monography to the first dimensional problem is the theory of condition according to the law. The important aim of this idea is to justify a so-called subsumtion model of explanation of causation. In this model the first task is to find out the constant law with general validity. Then we will look for the relevant variables which are so-called the boundary conditions. By this method, we can obtain the appropriate natural law or rule of experience involving this certain case (the minimal sufficient condition). Finally, we will have acquire the best explanation of causation between cause and result. In case of the wrongful collective decision, we should take voting conduction of each colleague instead of discussion because of the importance of the former much more than the latter. Then it can be undoubtedly justified with this model that the voting behavior of each colleague is the necessary part of the sufficient condition that produces this wrongful decision. In the same point of view, the behavior of opposing votes could be seen as neither having cause to the wrongful decision nor having objective attribution to the decision because of no creation of unpermitted risks. Secondly, in the light of the problem of perpetration, this monography tries to observe the conspiracy in the view of the theory of causation. The objective condition of the conspiracy should be justified that it can be explained the deterministic causation or at least the probable causation of each participation to the offense. The mutual determination of the offense, the subjective condition of the offense is absolutely necessary because of the various and different extent of every participation which reflects the degree of the penalty. Only relying upon this argument we can justify that every offender in the conspiracy is qualified as the perpetrators in the light of Article 28 of Taiwan Penal Code or Article 25 Paragraph 2 of German Penal Code which all stress on the equivalence of the perpetrators. However, we can not justify that the mutual agreement among these participants obviously exists in the wrongful collective decision. As a whole, we can only regard the colleague as individual perpetrators instead of conspirators in contrast with the solution of the conspiracy supported by increasing number of authors in the literature of Germany.