从刑法角度评价护理机构的约束

Erkki Hirsnik, Marje Allikmets
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引用次数: 0

摘要

限制措施与刑事犯罪的必要要素之间的联系可能是双重的。首先,限制措施可以与《刑法典》特别部分法律条款中所述的行动相对应。这意味着约束人可能会受到刑法的指控。然而,第二,需要指出的是,在某些情况下,如果不使用限制措施,可能会承担刑法规定的责任——一个人可能会因不采取行动而对犯罪承担责任。因此,从刑法的意义上讲,看护人的工作涉及高度的责任和危险——既可能因做了某事也可能因不采取行动而受到惩罚。在实施限制措施后,《刑法典》特别部分的若干宪法可能具有相关性。然而,这里要看的主要条款是《刑法》第136条(非法剥夺他人自由)。因此,该条主要侧重于这一条款,并分析了《刑法典》特别部分中可能具有相关性的其他一些条款。它还涉及不包括非法行为的一般情况,即不仅在护理机构,而且在几乎所有其他地方都要考虑的情况。在此之后,文章分析了不包括非法性的具体情况,即与文章主题相关的情况。由于爱沙尼亚关于这一问题的法律文献(和判例法)很少,本条主要以德国法律为基础,德国法律是爱沙尼亚法律的一个重要模式。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Restraining at Care Institutions Evaluated from the Standpoint of Penal Law
The connection of restraining measures and necessary elements of a criminal offence may be twofold. First, restraining measures can correspond to actions described in legal provisions of the special part of the Penal Code. It means that the restraining person could be charged under criminal law. Secondly however, it needs to be noted that in some cases, liability under criminal law may follow when restraining measures are not being used - a person may become liable for committing a crime by failing to act. Thus, the job of a caretaker involves a high level of responsibility and danger in the sense of penal law - a punishment may follow both for doing something and also for failing to act. Upon the implementation of restraining measures, several constitutions of the special part of the Penal Code may become relevant. However, the primary provision to view here is Article 136 of the Penal Code (unlawful deprivation of the liberty of another person). Therefore, the article mainly focuses on this provision and also analyses some other provisions of the special part of the Penal Code that may become relevant. It also addresses general circumstances excluding illegality, i.e., the circumstances to be considered not only in care institutions but also almost everywhere else. After this, the article analyses specific circumstances excluding illegality, that is the circumstances relevant within the context of the topic of the article. Since there is very little legal literature (and case law) on this matter in Estonia, the article is mainly based on German law as an important model the Estonian law is built upon.
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