| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 105 === This thesis focuses on the legitimacy in criminal law of the Organized Crime Prevention Act, which has not drawn sufficient attention from the researchers compared to the perspective of effective prevention, and hence no foundation has been established to help form the strategy of interpretation based on the research result. The opinions on the incrimination legitimacy of founding/joining a criminal organization, despite the apparent difference among themselves, actually share the common basic view of “criminal law dealing with risks” and set risk prevention as the priority purpose of criminal law. By pointing out this fact, this thesis attempts to explain the social context of the emerging of this paradigm and the following crisis of “the theory of legal good,” which used to be viewed as the fundational theory to examine the legitimacy of criminal law. After the critical analysis of the “theory of personal legal good” on the issue of “pre-incrimanational collective legal good,” this thesis re-examines a variety of opinions according to the concept of law based on personal autonomy and extends the idea of “monopoly on violence” by justifying the monopoly of coercive power in the liberal idea of state. In conclusion, this thesis suggests that the incrimination of founding/joining a criminal organization could be supported by the fact that such behavior would interfere with the activation of the state’s procedure for resolving the conflict of rights, and the legitimate reason for the Act is the citizens’ joint obligation. Therefore, the interpretation of the Act should follow the principle of “incident-relation” and emphasize the interference of the state’s procedure in order to correspond with the legitimacy of the Act.
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