25 November 2020
The Taiwan High Court rendered the 109-Jiao-Shang-Su-52 Decision of June 24, 2020 (hereinafter, the “Decision”), holding that if an actor continues to maintain a dangerous driving behavior after a fluke mentality that no accident will be caused is eliminated, the actor at this juncture subjectively has dolus indeterminatus to kill.
According to the facts underlying this Decision, Defendant A, who started the engine of a small passenger vehicle after consuming alcohol, should have heeded that he should not drive a car if his body alcohol concentration after drinking reaches 0.15 mg/liter. However, since his judgment and reflexes were impaired after drinking, not to mention that he was driving above the speed limit, failed to pay attention to the situation in front of his vehicle and take necessary safety measures whenever it was necessary to do so, and hit the heavy motorcycle ridden by Victim B in front of him at a high speed. As a result, B was injured. At this time, knowing that the rider of the motorcycle would be injured after it was hit by A’s car at a high speed, A did not slow down at all or stop the car to check, provide rescue or call the police to handle the accident but, instead, continued to drive at a high speed to escape from the scene out of the criminal intent of hit and run. At the same time, A had already foreseen that if he continued to drive dangerously at a high speed under the influence of alcohol, he would probably hit another motorcycle on the road again and kill the rider. However, he still continued to drive at the same high speed based on the dolus indeterminatus to kill in order to flee the scene of the accident as soon as possible. He hit another heavy motorcycle ridden by C at a high speed four seconds later. As a result, C was knocked to the ground. Meanwhile, the heavy motorcycle ridden by D was also hit at the same time, resulting in D’s head trauma, while C suffered from injuries such as multiple fractures and pneumothorax. After being rushed to Hospital X, C still died as a result of the above-mentioned injuries. The above circumstance was not known until the police rushed to the scene upon information after the accident and detected that A’s exhalation alcohol concentration as measured was as high as 1.29 mg/liter.
According to the Decision, Article 14 of the Criminal Code provides that a conduct is committed negligently if the actor fails, although not intentionally, to exercise his duty of care that he should and could have exercised in the circumstances (i.e., “unforeseen negligence”); and a conduct is considered to have been committed negligently if the actor is aware that his conduct would, but firmly believes it will not, constitute the fact of an offense (i.e., “foreseen negligence”). If the actor does not obviously know that his act will cause the death of another person, but has foreseen that the act may cause the death of another person, and insists on such act even if it causes the death of another person, then it can be considered that the result of the death of another person does not violate the intention of the actor. At this juncture, the actor has dolus indeterminatus to kill. Conversely, although the actor foresees that his act may potentially cause the death of another person, still he is very confident and firmly believes that in the objective environment he is in and with his ability to control the situation, the death of another person will definitely not happen. Then, this is not dolus indeterminatus and is foreseen negligence.
It was further indicated in this Decision that Defendant A contended that before hitting B, he felt that it was still early without police officers around and that he would not cause any car accident because he was still capable of controlling his vehicle. That was why he drove his care, thinking that he would be lucky. Therefore, although the Defendant had engaged in dangerous driving such as driving under the influence of alcohol, running red lights, and driving at a high speed during the entire driving process prior to the first collision with B, still it is difficult to confirm that he was subjectively in a state of mind that “he would just accept the outcome of the death of another person and would not mind causing the death of another person due to the accident he caused.” In addition, it is impossible to rule out the reasonable suspicion that his state of mind was that he was “convinced that he still had a great deal of control over himself and would never cause an accident or result in the death of another person.” Therefore, it is difficult to conclude that he had dolus indeterminatus to kill, and the only the conclusion that can be drawn is that he had foreseen negligence. However, when A hit B at a high speed, sending B and his motorcycle flying in the air, the fact that this serious accident occurred made the Defendant realize that his dangerous driving under the influence of alcohol and his driving at a high speed were not just “dangerous,” but were “actual harms” that had been caused, resulting in the serious injuries of others. In other words, when the actor witnessed in his own eyes that he had hit B at a high speed and knew that B would definitely be seriously injured, his firm fluke mentality that “there is no way that he would cause a car accident that results in the death of another person” is eliminated. When the actor continued to drive dangerously at a high speed after his lucky mindset had been eliminated, it is obvious that the actor was aware of the serious consequences of dangerous driving and wanted to get away from the scene of the accident as soon as possible with a mindset that he would not mind if another person would be hit and killed again because of his continued dangerous driving. It can be concluded that the Defendant was in a state of mind that “he would not mind the consequence of causing the death of another person” and allowed the death of another person to occur, rather than just had a fluke mentality that “he firmly believed that the consequence of any death would not occur.” Therefore, this is sufficient to conclude that the Defendant subjectively had dolus indeterminatus to kill.
For further information, please contact:
Frank Sun, Lee Tsai & Partners
lawtec@leetsai.com
