重新建構刑法上保證人地位的法理基礎

Reconstructing Legal Grounds of Guarantor’s Obligations

本文的目的，在於重新建構保證人地位的法理基礎，並據此得出具有刑法上適格的保證人地位事由。以往學說所採取的支配、信賴或期待概念，都是屬於形成保證人地位之規範性關係的反射結果，並無法提供具有建構作用的判準。相對於此，本文從刑法義務型態出發，區分消極義務（不侵害義務）／積極義務（協助義務），並認為保證人地位的問題，即是刑法應在何種範圍上承認積極義務的問題。刑法承認廣泛性消極義務，並沒有什麼疑問；一個以個人自由與權利為核心的實質不法概念，所要求的不外乎禁止侵害他人。

The purpose of this study was to rebuild the legal ground for guarantor's position. Although there were theories about the ground for guarantor's position, none of them provided normative criteria. The ground for guarantor's position should be the extent to which the criminal law can order a person to help the others. Such an order of criminal law is referred as "positive obligation" in this study. The wrong in criminal law implies an offense to personal freedom. Thus, the criminal law would include what is referred in this study as the "negative obligation" that requires a person not to offense the others. However, the same logic does not apply to the case of "positive obligation", because the solidarity, which forces citizens to undertake the risks of others, by itself is an infringement to personal freedom. The author argues that there are only two legitimate grounds for guarantor's position. The first ground is the supporting system that saves a person without capacity of autonomy from losing the chance to live. The second ground is the agreement on the transfer of the duty to control risks. These two grounds would not infringe freedom; furthermore, they can ensure the premise of freedom.