Eric Hilgendorf 著 林信銘 譯

中文摘要

2017 年夏天對於道路交通法所進行的改革，德國立法者清 楚地傳達了，新的駕駛形式完全可以在傳統且行之有年之道路交 通法的框架下被規制，對於高度自動駕駛與全自動駕駛的法律基 礎加以描述。然而，許多自動駕駛的問題仍尚未獲得解決，雖然 自動駕駛倫理委員會對於「兩難困境問題」所提出的解決方案緩 和了公眾的爭論，學術的討論才正要展開。未來的汽車不僅係 「自動地」行駛，亦多元地與其他車輛、道路以及與網路相連 結，以致於網路犯罪即將可能對於道路交通進行攻擊。目前最重 要的法律實務問題，應屬透明地且依法治國原則可被檢驗地限縮刑法上的生產者責任。 本文以一個重要的先驅案例「阿沙芬堡案」為例，說明科技 不可能永遠安全，如果我們想利用一項特定的科技，就必須容任 它的風險。然而，唯有當生產者為了在可能（與可期待）的範圍 內，盡量降低其產品所衍生的危險，盡了一切對其而言可期待的 努力，方有此一原則的適用。也就是說，生產者必須致力於，在 可期待的範圍內，使其產品盡可能地安全。此亦適用於已經存在 於道路上的汽車。 關於科技系統的生產者是否可被要求對於系統所導致之損害 負責的問題，在刑法上主要將涉及到界定生產者應擔保的安全程 度，並藉此界定其注意義務的範圍。容許風險的角色顯得適於亦 在未來恰當地建構與限縮自主系統生產者的刑事責任。

Autonomous Driving and Criminal Law- The Case Aschaffenburg

Eric Hilgendorf (Author) Shin-Min Lin (Trans.)

abstract

With the reform of the Road Traffic Act in the summer of 2017, the German legislator has made it clear that the new forms of mobility can certainly be regulated within the framework of traditional and proven road traffic law, and formulate the legal basis for highly automated and fully automated driving. However, many problems of automated driving are still open. Although the solution to the "dilemma problem" presented by the Ethics Commission on Automated Driving has softened the public debate, the academic discussion is only just beginning. Cars in the future are not just "automated", but are also interlinked with other vehicles, the road and the internet, so that cybercrime could soon spread to the streets. The most important current practical legal problem is likely to limit the criminal manufacturer's liability transparently and thus under the rule of law. This article takes an important case “Aschaffenburg Case” as an example to explain that technology is never completely safe. So if we want to use a particular technique, we have to take risks. However, this only applies if manufacturers do everything they can to reduce the risks posed by their products as much as possible (and reasonably). That is to say, the manufacturer must make every effort to make his product as safe as possible within the bounds of reason. This also applies to vehicles that are already on the road. Whether the manufacturer of a technical system can be held responsible for any damage caused by the system, in criminal law, it will be mainly about to determine the level of safety that the manufacturer has to guarantee, and thus the scope of his due diligence. The figure of the permitted risk seems suitable for structuring and limiting the punitive liability of manufacturers of autonomous systems also in the future.