日本危險駕駛致死傷罪之解釋現況與分析──以行為的危險性與因果關係的判斷為中心

A Critical Analysis of Interpretation and Application on the Offences of Dangerous Driving Causing Death or Injury in Japan: In the Context of Judgement of Objective Dangerousness

以社會高度關注的交通事故案件所引發的輿論效應為契機，日本危險駕駛致死傷罪在重罰化的立法脈絡下，呈現出處罰內涵空洞化的問題傾向。首先，在罪質方面，所謂無獨立處罰危險駕駛行為規定的加重結果犯，可說是實質掏空不法內容與責任內涵的立法設計。其次，各行為類型欠缺規範明確性而有危險判斷寬鬆化的傾向之外，將事故發生前的過失行為一律包攝於行為危險性之中的解釋立場，也使因果關係的判斷適用有明顯形式化的疑慮。基此，本文試圖藉由相關學說議論以及實務運作狀況的觀察與批判式分析，以釐清本罪解釋上的問題脈絡。透過這樣的比較法研究，希冀從中探求具有相同問題結構與解釋傾向的我國不能安全駕駛致死傷罪，在解釋論上的反省契機。

The main purpose of this treatise is to clarify the issue of Dangerous Driving Causing Death or Injury in Japan (Act on Punishment of Acts Inflicting Injury or Death on Other(s) by Driving a Vehicle § 2). In 2000s, the purpose on legislation regarding this crime was to response the public opinions about severely punishment in terms of “Mean Driving”. However, in order to reach the social expectation, the end result of this crime bill was considered to be ambiguous. Such controversial issue could be stated in three significant figures. First, the Dangerous Driving Causing Death or Injury seems be reckoned as an offense aggravated by results of a crime. Nevertheless, dangerous driving is not to deem to be a distinct crime in the basic criminal act. Second, the legal constitutive requirements of this crime, which were used to define the dangerous driving actions are equivocal—thus the interpretation of the behavior is onto personal value judgement. Third, as to the application of causation, it could be explained in certain formalized ways. For instance, the harmful results caused by driving mistakes may be deemed as lack of relevance in dangerous driving behaviors according to the legislative instructions but still found guilty on the court. Overall, it can be addressed that the worst problem of interpretation and application in this crime at judicial adjudication is to ignore the nature of criminal danger, and the judgement of causation would be in mere form. Furthermore, the constitutive requirement of this crime is not in accordance with the seriousness of behavior. Rather, it is an act of against traffic regulations. Consequently, the objective dangerousness of this crime would be hollowing out—just like a normal car accident. To resolve the dilemma, the issue with interpretation and application are illustrated by means of analysis to theories and cases based on the essential of aggravated resulting crime in criminal danger. Moreover the viewpoints suggested in this treatise could reflect the similar conundrum under the current circumstance in Taiwan (Art. 185- 3 of the Criminal Code).