Victim-centric Jurisprudence and Fraud

• Main Authors: Lee, Li-Wei, 李立暐
• Other Authors: Liu, Shing-I
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/73214170566907864694

碩士 === 國立臺北大學 === 法學系 === 94 === Victim-centric Jurisprudence (Viktimodogmatik) is a controversial perspective in criminal law. While its origin, Victimology, has already become a widely accepted and researched field in the studies of Criminology, Victim-centric Jurisprudence undergoes continuous criticism since its first appearance in german law reviews. The basic idea of Victim-centric Jurisprudence is that when judging a crime, we must carefully look into the interaction between offender(s) and victim(s) involved in a criminal act. It is hardly imaginable that we attribute a crime to the offender using simple subsumtion. If we make a distinction between criminal wrongdoing and blameworthiness, it is reasonable to infer that the former must show sufficient degree of harm to the legal interest(s) from the ultima ratio principle, which states that the criminal law can be employed to protect legal interests only when it is necessary and appropriate to do so. Therefore, if the legal interest(s) of the victim is neither worthy nor in need of protection, we do not consider the act as a crime. To summarize, by means of Victim-centric Jurisprudence we can not only identify the previously stated degree and clarify whether a victim is worthy and in need of protection or not, but also more clearly interpret the penal code. In other words, although Victim-centric Jurisprudence cannot guarantee the correctness of legal interpretation, it serves as a supplement to the methods of penal code interpretations. Although it also plays a role in dealing with problems in the general part of penal code, its main sphere of influence is in the specific part. Therefore, Victim-centric Jurisprudence works as a “bridging principle” between general and the specific parts. Additionally, the assessment of a criminal wrongdoing on the norm level may be better linked to the experience based on studies of criminology. In this master’s thesis, the offense of fraud, a relationship offense, is chosen for further research, in which many disputed or not well explained problems are discussed using the criterion presented by the followers of Victim-centric Jurisprudence. For instance, how to distinguish “fact” from “opinion” remains a highly debated issue to our academics because only the former satisfies the requirement of deception and there are considerable overlaps between these two terms. Another problem exists in determining whether a deception is to the “present” or to the “future”, because most of the deceptions could be regarded as one as to the present if we add the offender’s belief in judgement, but is there a limit? Moreover, under what circumstances could we say the accused is convicted of deception either by “conduct” or by “omission”? In the latter situation, we need to prove that the accused has a special obligation to protect the legal interests of the victim while in the former, this requirement is not needed. In order to solve these brainstorming problems, it is difficult to attribute responsibility to the offender without analyzing whether the victim is worthy and in need of protection though final judgement are almost the same with those of the court and the dominant opinion among academics. The most controversial problem in the offense of fraud is as follow: in the offense of fraud, the offender must deceive the victim without letting him or her know the reality. The victim then harms himself financially because of the misunderstanding. The offender obtains a financial advantage as a result. Traditionally, it is assumed that the victim is successfully cheated even if he is in doubt as to whether the statement of the offender is true or not. However, if considering the ultima ratio principle, the punishment can only be imposed when it is necessary and appropriate to do so. In my opinion, if the victim has a concrete doubt about what the offender says but insists carrying on with the transaction at the risk of losing pecuniary interests, this victim does not deserve the protection offered by the criminal law. In other words, the so-called victim consciously disregards his own interest(s). The accused is, at best, to be punished for attempting to commit the offense of fraud. On the other hand, if a victim is gullible, stupid, or careless, and the offender makes use of these characteristics, the accused still commits the offense of fraud. In summary, as long as the victim does not form a concrete doubt, his whole action remains under the domination of deception, therefore, the criminal law should be employed to intervene and prevent the deception.