영국법상의 부작위범에 대한 소고

Abstract

In the criminal law, at common law, there was no general duty of care owed to fellow citizens. The traditional view was encapsulated in the example of watching a person drown in shallow water and making no rescue effort, where commentators borrowed the line, "Thou shalt not kill but needst not strive, officiously, to keep another alive." (Arthur Hugh Clough (1819-1861)) in support of the proposition that the failure to act does not attract criminal liability. Nevertheless, such failures might be morally indefensible and so both legislatures and the courts have imposed liability when the failure to act is sufficiently blameworthy to justify criminalisation. Some statutes therefore explicitly state that the actus reus consists of any relevant "act or omission", or use a word that may include both. Hence, the word "cause" may be both positive in the sense that the accused proactively injured the victim and negative in that the accused intentionally failed to act knowing that this failure would cause the relevant injury. In the courts, the trend has been to use objective tests to determine whether, in circumstances where there would have been no risk to the accused's health or well-being, the accused should have taken action to prevent a foreseeable injury being sustained by a particular victim or one from a class of potential victims. And it is often asserted that liability for omissions ought not to be restricted to those cases where there is a legal duty to act. The person who sees a strange child drowning in a shallow pool of water and neglects to rescue him when she could have easily done so with no danger to herself, has killed that child as surely as if she had held the child's head under the water and ought to be punished to the same extent. And There are many arguments as to why English law should not introduce a general duty to act. The central issue relates to individual liberty and autonomy. Our freedom should only be restricted insofar as it is necessary to prevent persons causing harm to others. Therefore There is no general duty to act. And there are various reason rhat a duty to act is imposed in English Law. A duty to act may be imposed by Statute. and also a duty to act may be imposed by contract, a relationship with another persons. And a duty to act may be imposed by assuming a responsibility to care for another person, and a duty to act may be imposed in order to minimize the consequences of a dangerous situation that D created himself. And a duty to act may be brought to an end, either because the other person requests it or because it would not be in their best interests.