不真正義務概念在刑法歸責理論中的建構

Constitution of The Concept of Obligation in The Criminal Attribution System

本文旨在將借自民事法領域的不真正義務概念正式導入刑法，將其整合為歸責理論中的一般性概念，並藉由對不真正義務內涵的探討，一併檢討將法益保護視為最高目的的刑法學說，重新建構以行為義務違反為核心的實質犯罪理論。透過辨析不真正義務與真正義務之間的關係，本文進一步申論刑法內行為規範與歸責規範共同具備的規範性特質，據此證立以下見解：刑法上的歸責基礎，在於一個受規範承認的自由行為，違反了該行為主體賴以實現其自由的法秩序對其提出的遵守義務要求。由於法秩序內存在著不同強度、不同目的之行為規範，違反這些規範的行為，亦會在法領域裡觸發不同效果。所謂不真正義務，乃是刑法以外、法秩序要求其公民遵守的廣義行為規範，它和刑法裡直接規定的行為規範各自獨立又相輔相成。違反不真正義務的行為，由刑法角度來看，依然是符合社會相當性的行為，故其本身並不直接觸發刑事效果；不過，一旦行為人在其後實現了形式上的構成要件行為，且後者與前者間具備主觀與客觀上的連續性，先前的不真正義務即轉化為一種歸責規範，使後階段行為重新成為可被刑法歸責的對象。

The purpose of this paper is to formally introduce the concept of obligation originally from the field of civil law into criminal law and integrate it into a general concept in criminal law liability theory. By discussing the connotation of obligation, this article reviews the criminal law theory that regards the protection of legal interests as the highest purpose and reconstructs the substantive crime theory with the violation of behavioral obligations as the core. Through the analysis of the relationship between obligation and criminal duty, this paper further discusses the normative characteristics shared by the code of conduct and the code of imputation in criminal law. Based on this, the following opinion is justified: the basis of imputation in criminal law is that a free act recognized by norms violates the requirements of the legal order on which the subject of the act depends to realize his freedom.
In the legal community, there are behavior norms with different strengths and different purposes. Violations of these norms will trigger different effects in the legal field. The concept of obligation refers to a broad code of conduct outside the criminal law that the legal community requires its citizens to abide by, and the code of conduct directly stipulated in the criminal law is independent but complementary. Obligation can indeed be integrated into existing criminal law attribution systems. Violation of obligation, from the perspective of criminal law, is still a socially appropriate behavior, so it does not directly trigger criminal effects. However, once the perpetrator subsequently realizes the behavior of the formal constituent elements, and there is a subjective and objective continuity between the latter and the former, the previous obligation is transformed into a norm of imputation, making the behavior of the later stage become an imputable object of criminal law again.