| Summary: | 碩士 === 國立成功大學 === 法律學系 === 100 === The purpose of this article is to evaluate sports injuries from the perspective of criminal law, and focus on the principle of victim self-liability for drawing the line of punishability of sports injuries.
The risks of injury are much higher in competitive sports. Once sports injury occurred, which may involve the dilemma whether to identify it as a criminal assault or a lawful sports behavior. Nowadays in domestic and foreign theory or praxis, the scholars generally use theories like: theory of social adequacy (equivalence), concept of tolerated risk (acceptable risk / allowed risk), and institution of consent as legal justification of sports injuries. Nevertheless, there are several difficulties of practical application with all these theories above, so that these theories can't either comprehensively or well solve the issue of punishability of sports injuries.
Although sports participants who are under the awareness of the risks of sport injury voluntarily participate the competition, they certainly don't aim for suffering from sports injury or even want to get hurt. It is so called the self-involvement in risk of victim. Recently, scholars generally recognize that, in the situations of the self-involvement in risk of victim, due to the principle of victim self-liability, the offender is not subject to criminal liability (without objective imputation) even though the risk becomes the actual result eventually. To regard the principle of victim self-liability as the boundary of the punishability of sports injuries means: a sports participant who has capacity of self-liability ─ with correct awareness of specific inherent risks of sports, and voluntarily participates the sports ─ , should be responsible for the injuries result from the specific inherent risks of sports. In other words, as long as the victim has capacity of self-liability for participating sports, the offender cannot be imputed when the result of damage to legal interest happens to be the realization of specific inherent risks of sports, namely, the behavior which causes sports injury is not punishable. The main point is to define the scope of specific inherent risks of sports by means of categorization.
This article doesn’t deny the pluralistic solutions. After analyzing and comprising in many ways, it is the principle of victim self-liability that appears to be a better solution to the issue of the punishability of sports injuries ─ because of suitability and reasonability.
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