| Summary: | 碩士 === 國立臺北大學 === 法律學系一般生組 === 105 === When the behavior of the perpetrator belongs to multiple criminal acts, it is always a controversial issue to differentiate between affirmative act and omission. Although distinguishing between affirmative act and omission is not as important as many criminal legal theories, it is the first step to take when determining whether a behavior constitutes a criminal conduct. After reviewing the domestic and foreign literatures, this article finds out that the theories trying to deal with the distinctions between affirmative act and omission generally divided into “realistic distinction theory”, “normative distinction theory” and “risk relationship theory”. But there are still some defects remain unsolved in these theories. Therefore, this article attempts to study what is affirmative act and omission in criminal law through the punishing justification of criminal offense committed by affirmative act and omission offence.
This article believes that the way to distinguish between affirmative act and omission must be observed separately from different criminal norms. For criminal offense committed by affirmative act, but-for theory is found to be quite suitable to be a link to connect the phenomenal perspective and normative perspective. When the behavior of the perpetrator is confirmed by the but-for theory to be a condition of the existing illegal phenomenon, we can be initially identified the affirmative act violated the prohibition of norms and will be sure that the conduct of the perpetrator is an affirmative act in a criminal law. But for omission offence, the but-for theory itself is not enough to demonstrate why the criminal law has to punish some specific omissions. Through the observation of omission offence, this article believes that the status of the guarantor is a linkage between phenomenal perspective and normative Perspective. When the perpetrator has the status of the guarantor in the criminal law, we will be able to initially determine the omission violated the commandment of norms and will be sure that the conduct of the perpetrator is an omission in a criminal law.
As for the negligent offence by omission, this research believes that before determining whether the conduct constitutes negligence you need to decide whether the conduct is an affirmative act or omission. Through the study of criminal offense committed by negligence, this research holds that it is necessary to determine whether it is an omission in advance, and then determine whether the omission violates the objective duty of care.
To sum up, this research believes that in order to distinguish between affirmative act and omission, it is necessary to consider the but-for theory and the status of the guarantor in advance, especially in the case of multiple criminal acts. As for the negligent offence by omission, we must consider the distinction between affirmative act and omission before objective duty of care to avoid improper judgments.
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