The "Evil" of Omission? — An Introduction to the Outline of the Practical Development of "Position of Guarantor" in Our Country

In last week's forum titled "Who Will Guarantee Social Workers? On the Legal Responsibilities and Professional Boundaries of Social Workers within the Social Safety Net", scholars thoroughly explained academic opinions on the "position of guarantor" and illustrated cases under German law where social workers held such a position. However, questions from the forum still revealed that many people are puzzled as to why this concept is established.

To this end, this article specifically outlines how our judicial practice has constructed this concept and offers some reflections.

1. What is the "Position of Guarantor"?

When discussing "crime" in general terms, one intuitively thinks of a perpetrator using their own actions to accomplish "a certain act that violates the Criminal Code." For example, committing murder with a knife or a gun constitutes the crime of murder; or stealing a wallet constitutes the crime of theft.

However, in law, alongside the aforementioned typical "commission" (acts), certain crimes are also accomplished through "omission." For instance, parents who allow their child to drown by a river without rescuing them commit the "crime of murder" through "omission."

Yet a question may arise: can everyone involved in the same incident be an "offender by omission"¹? Taking the aforementioned case of "parents allowing a child to drown," if a passerby other than the parents passes by but fails to rescue, should that passerby who fails to render aid also be held responsible? In conclusion, the passerby would not be guilty of the "crime of murder."

Because the legal evaluation of an "offender by omission" expects certain "responsible persons" to proactively eliminate harm, it is inappropriate to infinitely expand the requirement and demand that everyone bear this obligation. Therefore, regarding who must be held responsible and who should be relied upon,

the law must explain. The "responsible persons" referred to here are what judicial practice and academic doctrine term persons who possess the "position of guarantor."

^{1 To keep the text concise, "offenders by omission" discussed in this article all refer to "improper crimes of omission."}

2. The Criteria Defined by Judicial Practice

In our Criminal Code, Article 15 is mostly used to explain the defining criteria of the "position of guarantor," the content of which is as follows:

However, when discussing what constitutes "legal" obligations, current mainstream judicial practice maintains that this should be observed through the overall "legal spirit" without requiring an explicit "statutory provision." For example, individuals who voluntarily assume obligations, close relatives, risk communities, preceding dangerous acts that breach obligations, and those with a duty to supervise a source of danger all possess a position of guarantor²; whereas those acting solely out of ethical, moral, religious, or social reasons do not belong to this category³.

As in the example most frequently cited in criminal law textbooks, among mountaineering team members climbing together, each constitutes a "risk community" engaging in high-risk activities together, and thus they bear an obligation to rescue one another. In this case, if a mountaineering team member encounters danger, the other members have the "position of guarantor" obligating them to rescue⁴.

^{2 Supreme Court 114 Tai-Shang-3967 Criminal Judgment, Supreme Court 112 Tai-Shang-2198 Criminal Judgment.
3 Supreme Court 113 Tai-Shang-472 Criminal Judgment.
4 However, some scholars also hold that this case does not constitute a position of guarantor.}

3. Blurred Boundaries?

Nevertheless, if it is not a "statutory provision" but rather based on the "legal spirit," room for interpretation may exist, which in turn gives rise to the question of whether the "standards are insufficiently clear."

There was once a case⁵ where a scrap collector repeatedly trespassed into a gravel yard, attempting to pick up steel bars and iron rods inside to sell. The defendant, serving as the manager of the gravel yard, repeatedly drove him away. Unexpectedly, despite multiple dissuasions, the scrap collector still trespassed, and subsequently was accidentally crushed to death by an excavator driver due to the excavator's visual blind spot.

In this case, the court held that: since the gravel yard contained steel bars and iron rods, the possibility existed that someone might want to trespass and pick up items to sell, and operating an excavator inherently carries a certain level of danger; therefore, the manager of the gravel yard held a position of guarantor toward personnel entering and exiting.

The court further pointed out, "If someone trespasses multiple times, barrier facilities should be installed, or personnel should be assigned to direct operations at the excavator's work site." "Although the victim's unauthorized trespassing falls under self-endangerment, this cannot therefore exempt the defendant from the obligation of a guarantor." Consequently, it was determined that the manager bore responsibility for "negligent homicide."

It is worth mentioning that regarding the excavator driver operating the excavator in this case, the court held that because he "was merely paid a daily wage and was not the actual manager of the premises," he did not possess a position of guarantor. Furthermore, because the victim was indeed in a visual blind spot and the driver could not see him, an acquittal was ultimately rendered.

Under normal circumstances, it is unproblematic that a gravel yard manager holds a position of guarantor regarding the personal safety of personnel on the premises. However, whether someone who repeatedly trespasses and forces their way in despite repeated dissuasions and expulsions should still be held responsible for their actions seems to leave room for discussion⁶.

^{5 The following is merely a summary of the judgment's gist; for details, see: Supreme Court 110 Tai-Shang-4038 Criminal Judgment.
6 A discussion previously held in academic doctrine regarding a similar case is: a burglar who accidentally gets injured inside a house should not be considered to have a position of guarantor held by the homeowner.}

4. Does Having a Position of Guarantor Establish Criminal Liability?

However, once a court determines that a defendant has a position of guarantor, will accidents occurring in the case inevitably cause the defendant holding the position of guarantor to establish a "negligent offense by omission"?

In fact, not entirely. In this regard, some courts have emphasized and explained that there are still many points in law that need to be evaluated, such as:

(1) The Law Does Not Demand "Ineffective Obligations"

Regarding this issue, further discussion exists in certain judicial judgments. It is held that besides the position of guarantor, when determining whether a "negligent offense by omission" is established, it must be further clarified whether the actions demanded of the defendant holding the position of guarantor can truly prevent accidents from occurring, rather than merely constituting an "ineffective obligation."

For instance, a judgment pointed out: "The punishment of offenses by omission under the Criminal Code does not lie solely in failing to fulfill an obligation to act; it must also be considered whether acting could have definitively and securely prevented the result from occurring, rather than being an ineffective obligation, so as to avoid holding omissions that breach the duty to act criminally liable for the result merely due to the 'possibility' of the result occurring, which would raise concerns of offenses by omission degenerating into offenses of danger."⁷

(2) The Demand for Obligations Must Possess "Expectability"

Aside from requiring scrutiny into whether an obligation is an "ineffective obligation," some judgments have further considered whether the demanded obligation constitutes "making excessive demands on someone." For example, a judgment pointed out that even if a defendant has a position of guarantor, if the demanded obligation "lacks expectability" (possibility of being expected), a negligent offense by omission cannot be established⁸.

(3) The Risk Must Be "Reasonably Foreseeable According to Industry Practice" (or Termed "Avoidability")

In addition, some judgments depart from whether there is "avoidability"⁹ in terms of the result to explore matters that should be considered beyond the position of guarantor.

For example: In Supreme Court 110 Tai-Shang-5331 Criminal Judgment¹⁰, the defendant was a manufacturer of crib bed rails. The case arose when an infant accidentally became wedged into the gap between bed rails while rolling over, leading to death by shock, while the parents happened to leave the infant unattended in the room. The defendant's accused negligence lay in improper product labeling: its packaging merely noted "for ages 0 to 6 years" without appending warning text such as "infants and young children must not be left to use alone without adult supervision," which was thus deemed connected to the occurrence of the accident¹¹.

The court in this judgment held that the determination of criminal liability cannot be built upon "ex post result-oriented" inferences, but must return to the objective conditions at the time of the conduct for evaluation. Even if a death result ultimately occurred, if the actor could not reasonably foresee the risk according to the knowledge, technology, and industry practices at the time, and did not violate expected safety standards, criminal punishment should not be pursued. The court simultaneously emphasized that modern society is inherently filled with risks of varying degrees; if all products were required to issue comprehensive early warnings for any possible danger, warnings would become ubiquitous and instead lose their substantive meaning.

Synthesizing the above opinions, in our judicial practice, the "position of guarantor" may be a broader and more easily established basis of obligation; however, certain judicial practices have also consciously clarified that once a position of guarantor is established, criminal liability is not inescapable, but rather other conditions for establishing a crime should be further examined.

^{7 Supreme Court 114 Tai-Shang-1892 Criminal Judgment.
8 Taiwan High Court Kaohsiung Branch Court 114 Tai-Shang-Yi-478 Criminal Judgment. However, some scholars also emphasize that "expectability" refers to whether the actor had the possibility of choosing to engage in lawful conduct in the immediate context. "Possibility of acting" refers to whether the actor was capable of adopting protective measures or measures preventing the result of legal interest damage under the objective spatio-temporal conditions at the moment. Therefore, under academic understanding, the circumstances of this case may be closer to the concept of "possibility of acting" rather than "expectability."
9 Besides reviewing whether there is a guarantor's obligation that "should be prevented," it is also necessary to examine whether the actor "could prevent" it and whether the result possesses "avoidability."
10 This case was subsequently finalized via "Supreme Court 113 Tai-Shang-3291 Judgment." The entire case originated from an incident in 2014, underwent two remand trials by the Supreme Court, and was finally concluded in 2025, taking the defendant a full 11 years to end their wandering through the judiciary.
11 The indictment held that the basis for the position of guarantor was Article 7, Paragraph 1 and Paragraph 2 of the Consumer Protection Act: "Business operators engaged in the design, production, and manufacture of goods or the provision of services shall ensure that such goods or services comply with reasonably expected safety standards under the technological or professional standards of the time when the goods are put into circulation in the market or when services are provided; where goods or services are liable to endanger the life, body, health, or property of consumers, warning labels and emergency handling methods for the hazards shall be marked at conspicuous locations."}

5. Who Bears the Insufficiently Clear Scope of Obligations?

Because most current judicial opinions encompass the "legal spirit" (which is not limited to statutory provisions) when constructing the standards for the position of guarantor, doubts have arisen that the determination standards may lack sufficient clarity.

Regarding policy choices, such a mindset can perhaps be understood as an intention to construct a "social safety net consistent with the overall legal order" to protect public safety. However, whether utilizing the coercive power of criminal sanctions to construct a social safety net aligns with the purpose of criminal punishment, and whether assigning the responsibilities of social safety to specific targets in this manner is truly reasonable and fair, are questions worthy of deep reflection.

If broader standards are indeed to be continued, courts should at least more cautiously scrutinize factors such as "whether the result had avoidability," "whether it was an ineffective obligation," and "whether there was expectability" in individual cases of negligence to confirm whether the defendant should bear criminal liability. This is to prevent defendants in individual cases from being excessively subjected to "punishment" to bear social responsibilities merely due to social expectations. Because doing so is not managing social risks, but merely punishing a person's "misfortune."