THE CHALLENGES IN QUALIFYING THE CONDUCT IN CONCRETE CASES AS COMMISSION OR OMISSION

İCRAİ VEYA İHMALİ OLARAK SOMUT OLAYDA DAVRANIŞIN GERÇEKLEŞTİRİLİŞ BİÇİMİNİN TESPİTİ MESELESİ

Abstract

The harm that are occurred by active conduct may be also brought out bypassive conduct, omission, of those who have legal duty to act. In some cases,these two forms of conduct exist simultaneously. This is the case where a motherleaves her newborn to a secluded place and the baby dies or the physician shutsoff the reanimator and the patient dies. Both mother and physician have a legalduty to act and both performed the active conduct as well. In such cases, twoforms of conduct are come into being and lead to death. Consequently, thequestion on which form of conduct criminal liability should be based uponarises. That is to say, mother or physician should be punished due to the killingby commission or omission remains debatable. For such cases, various criteriahave been applied by the case law and doctrine of German criminal law. In thisstudy, these are put across by classifying as “reality” and “assessment”theories.The main approach of this study is not only relying on reality for thesolution; but after the retaining of the reality, it is necessary to make anassessment, which refers to the interpretation of norms. Because, in such cases,both forms of conduct stand at an equal distance to the norms. Starting from thispoint of view, the uniformity of conduct, the coexistence of recklessness crimeswith omission, the relationship of the previous and the next action with thepreexisting dangerous behavior and the crime of abandonment are discussed.All of our analysis has shown that a single criterion to be developedcannot solve the cases in which both forms of conduct occur, and that thesolution can be put forward according to the background of the case. Because,each of these cases contains various issues of the crime theory. Only these issuesremain in the background when two forms of conduct as commission andomission appears in the natural sense.

Özet

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