The Practice of Cultural Defenses Theory in Criminal Cases in Taiwan－－Focusing on Indigenous People
Date Issued
2015
Date
2015
Author(s)
He, Shu-Ya
Abstract
Culture is a life activity of human in order to adapt the environment among a society or group development. Indigenous people of Taiwan also developed some produce food, economic or social of regulate lifestyle when attached to the forest to survive, one member in this community will learn these ways, to maintain the relaationship of personal and tribal society. And then passed through generations of enculturation in shaping personality traits in the ethnic character of the Indigenous people . In various cultures of contact with the process, there should be no forced assimilation or discrimination other kind of cultural attitude. As a freedom and democratic countries in Taiwan, along with upgrading the provisions of the Constitution formulate, more respect for multicultural diversity should be emphasize. Therefore, to treat indigenous culture should hold the tolerance and respect. On the Legal surface, we should not ignore the cultural values of the indigenous ethnic groups or with a subjective prejudice, should not blindly apply the existing law established by the dominant culture, while ignoring Cultural dilemma in the minority ethnic groups. In response to Multicultural society, we have to make sure minorities can advocate the cultural evidences and values, there are some reflections of “cultural defenses” in US. The so-called cultural defenses is one kinds of litigation strategy, it means that defendants usually claim that their actions were affected by unique culture, therefore the actions were lacked of the essential elements, should not be subject to state sanctions. In practices, it has not yet become a formal recognition of the cultural defense of defenses in US. However ,scholars have long been discussed whether cultural defenses are formal defenses. The scholars that advocate formal cultural defense, ones of them thinks cultural defenses are justification, others thinks cultural defenses are excuses. There is no conclusive. According to six cases of Indigenous crimes, there were cultural defenses in Criminal Cases in Taiwan. However ,it is no consensus that how to positioned Indigenous people’ claims in the criminal law system. In recent years scholars also began to discuss the defense of Aboriginal culture should have any legal effect. There is sequentially review from elements of crimes, justification to excuses, to find out the possibility of exist of cultural defenses in the criminal law system. This thesis will put the cultural defenses into the “Zumutbarkeit”. Simultaneously the thesis will learn from the American scholar Alison Dundes Renteln, enrich the Connotation of “Zumutbarkei”, and make the cultural defense beneficial. This article can be both criminal law to protect legal interests and respect for the values of multiculturalism, and enhance the integrity of the judges review the Aboriginal Culture claims.
Subjects
Culture
Multiculturalism
Indigenous Peoples
Cultural defenses
Traditions and customs
Indigenous crimes
SDGs
Type
thesis
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