論護理師之作為義務與注意義務——評臺灣高等法院九十四年度上更（一）字第一二二號刑事判決

Nurses’ Obligation of Action and Duty of Care: An Analysis on Criminal Judgment S.G.Y. No. 122 (High Ct., 2005)

保證人地位為不純正不作為犯之核心概念，行為人具此地位，即對犯罪構成要件結果負防止義務，僅行為人具防止義務之前提下，其能防止卻不防止，始成立不純正不作為犯。過失不純正不作為犯乃行為人疏忽或懈怠於某一注意義務而未為防止結果發生之義務，惟如該結果並無預見或無避免之可能，仍不能令其負過失責任。關於不純正不作為犯過失致人於死情形，所適用之法條應為刑法第二七六條規定，並透過刑法第十五條規定加以修正，本件涉及被告因違反作為義務而致被害人死亡之情節，惟歷審法院對被告之保證人地位、作為義務、注意義務並未詳述，且所適用之法條為刑法第二七六條規定，未以刑法第十五條規定之不純正不作為犯的要件加以審查，又判決理由，亦有失精確。本文乃參照我國司法實務與學說見解，進而評釋高等法院（更一審）認為被告成立業務過失致死罪之見解是否妥適。

Guarantor’s position is the key element of the criminal offense committed by omission. A person who has guarantor’s position has a legal obligation to prevent the results of the occurrence of an offense. A person who has a legal obligation and is able to prevent the results of the occurrence of an offense but has failed to do so would commit the criminal offense committed by omission. The criminal offense committed by negligent omission refers to a person failed to prevent the results of the occurrence of an offense, because he or she breaches the duty of care. However, a person who causes injury to another is not liable if the results of the occurrence of an offense are not foreseeable or preventable. Regarding negligent manslaughter by omission, both the article 276 of criminal law and the article 15 of criminal law should be applied. This case is related to that the accused failed to prevent the results of the occurrence of an offense by breathing the duty of care. However, the courts did not thoroughly discuss the guarantor’s position, obligation of action, duty of care of the accused. In addition, the courts only applied the article 276 of criminal law, but not with the article 15 of criminal law, to this case that is not precise. This article intends to analyze the adequacy of such opinions adopted by the courts.