| Summary: | 碩士 === 東吳大學 === 法律學系 === 95 === “General Offenses of Causing Bodily Harm” and “Mayhem” are classified into different types of criminal acts in the articles of Criminal Code, leading to a tremendous discrepancy in criminal regulations. Hence, it is of great benefit and worth of further discussion on classification as well as in-depth investigation into the meanings and connotations of “harms” and “mayhem” in theory and in the practice of law.
Bodies and health are the objects which the laws of general offenses set up in Criminal Code intends to protect, also known as “physical rights,” “health rights,” “physical rights from being harmed” in the Constitution. As far as “bodies” are concerned, “Theory of Physical Dysfunction” is the common base in practice and in the academic circle. On the other hand, “health” refers to the normal state of mental and physical functions of human beings. Also, the state of mind is considered to be included in the definition of health in practice in Taiwan. Nevertheless, in the practice of law, whether the normal state of social functions can be identified as one part of health remains taken differently due to diversified points of view.
According to the legal definition of mayhem, there are two different case interpretations based on different perspectives on judgment about the level of harms to organic functions from clause 1 to clause 5 under the 4th entry in Article 10: Theory of Organic Destruction and Theory of Competence Destruction. The latter infers that the destruction of organic functions in Criminal Code is not based on whether physically there are remains of the organs, as the standard to determine if it remains functional or a charge of mayhem is established; instead, it is based on “maintenance of organic competence” as the standard of judgment. However, in clause 6 under the 4th entry of Article 10, “apart from bodies and health, there are serious harms, fatal harms, or treatment difficulties,” the establishment of mayhem is required to meet two standards, “serious destruction of function” and “difficulties of treatment.” Because “Theory of Functional Destruction” and “Theory of Treatment Difficulties” are adopted in the practice of law, whether the harms caused by criminal conducts will be determined as mayhem or not cannot be judged from seriousness of the given situations. Instead, it cannot be judged until the treatment is received. Such regulation is more beneficial to agents, which fits the principle of ultima ratio.
Grounded on the legal definition of “mayhem,” the concept of “serious harms, fatal harms or treatment difficulties” is the most difficult to define. It is suggested that according to the principles of judgment standard on physical challenge in administrative regulations, “serious harms” can be defined as “harms which results in damage of essential physical functions or loss of social functions,” while “fatal harms” as “harms which are irreversible or unrecoverable changes”, and “treatment difficulties” as “harms which require more than one year of intensive medical care.”
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