| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 106 === It is considered for granted in modern criminal responsibility theories that individual offenders are accountable for the offenses and shall accept the penalty. The main topic of this thesis is to reconsider the problem which hidden in this proposition, and to think about the question of if anyone else or the society itself should be in charge of the crime. In additional, do we have something more positive than penalty to deal with the crime problem?
The concept of “free will” plays a fundamental character in the theories of responsibility. However, when reviewing the history of criminal responsibility, it could be found that in the process of constructing offense, the subject of responsibility has transferred from communities to individual offenders. Under this situation, the image of a “standard man” had been set in advance: a rational, self- disciplined human with free will to be liable for his/her own decision. Until 1960s, discussion about the essential responsibility concept were once vigorously invoked in German, yet failed to re-examine the concept of free will. In this study, it argued that the concept of free will was just a fabricate claim produced for the purpose to penalize individual offenders, and, as a result, the modern criminal responsibility theories should be revised.
To replace the discussion around the essence of criminal responsibility, this study takes the approach of “constructive responsibility”. To reconstruct the new idea of responsibility, this study applies three existed concepts: the Japense original theory “strafbarer Schuld” as the frame, “the logic of basho” of Kitaro Nishida as the philosophical basis, and the “criminal post-processing function” as the purpose of penalty. In conclusion, society and others have contribute to the offense, therefore the individual offender’s own criminal responsibility should accordingly decrease, and we should reserve the non-penal aprroch to deal with the crime.
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