初探刑法案例研究方法論

On Methodology of Case Study in Criminal Law

本文討論刑法案例的審查方法，亦即應該採用何種模式才能正確且有效地審查刑法案例。我國學說就此曾發展出三種不同模式，其中仍以源自德國學說的鑑定模式最具說服力，不過，鑑定模式仍然有審查過程中不易解決的問題，例如行為範圍的界定、不易直接透過審查模式覓得解答的案例態樣，以及多數行為人共同犯罪等，本文就此也提供若干修補建議。

This article discusses the methodology for criminal law case studies, specifically which model should be adopted to ensure accuracy and effectiveness. In Taiwan, three different models have been developed in scholarly discourses. The“Gutachten”Model derived from German theory might be the most persuasive. However, it still faces challenges that are difficult to resolve in the case study process, such as defining the scope of reviewed conduct, dealing with case types that do not easily yield answers through the model, and issues related to joint criminal activities involving multiple perpetrators. This article also offers several suggestions for addressing these problems.