- 期刊
刑法第135條妨害公務執行罪之解析
Analysis of Offenses of Obstructing an Officer in Discharge of Duties in Article 135 of the Criminal Law
摘要
公務員執行職務是為了實現國家的具體意志，針對特定人或事物執行公權力，且必要時可以施以強制手段。保護的法益是國家公權力合法之行使、國家或機關執行作為的威信及國家權力的壟斷，故刑法第135條妨害公務執行罪之公務員的定義應在規範目的下解釋。行為人成立本罪是在公務員執行職務時施以強暴或脅迫，職務之「適法性」與否應自公務員所執行職務之具體內容，依據執行職務時相關法令規定客觀判斷，不僅公務員對該等職務須具有權限，且該特定職務行為屬於公務員具體權限之內容。強暴是針對執行公務者直接或間接施以對其身體的影響，目的是阻礙公務執行或令公務難以執行。倘僅是以消極之不作為、不予配合或反射性阻擋者，不屬之。脅迫是對公務員告知即將付諸實行的暴力行為，是精神上的影響，其強制作用必須發生於執行職務時。因本罪是強制罪的特別規定，對妨害公務的脅迫不應只是敏感的惡害，而是含有暴力性質的脅迫。新法增訂行為人以駕駛動力交通工具或意圖供行使之用而攜帶兇器或其他危險物品犯之，屬加重的妨害公務執行行為，目的是保障依法執行職務之公務員的生命與身體健康。
並列摘要
In order to realize the specific will of the state, public officials perform their duties to exercise public power against specific people or things, and impose coercive measures when necessary. The legal interest of this crime is the lawful exercise of the public power of the state, the prestige of the executive action of the state or the agency, and the monopoly of the public power of the state. Therefore, the definition of the public official of this crime should be interpreted under this normative purpose. The conviction of this crime is that the offender employs violence or threats against a public official engaging in the performance of his duties, and the "legality" of the duties should be determined by the specific content of the duties performed by the public official, according to the relevant laws and regulations when performing the duties. Not only must the public official have authority over his duties, but also the specific act must fall within the scope of specific authority. Violence is a physical influence, directly or indirectly, on the public official exercising public power with the purpose of obstructing or making it difficult to perform official duties. If just passive inaction, noncooperation, or reflexive blocking, doesn't belong to. Threat is the notification to a public official by an imminent act of violence. It is a psychological influence, and its coercive effect must occur in the performance of official duties. Because this crime is a special provision of Coercion, the threat of obstructing official duties should not be just a sensitive evil, but contain violence. Driving a powered vehicle or carrying a weapon or other dangerous items with intent to use has been amended as an aggravating element of this crime for the purpose of safeguarding the life and health of public officials performing their duties in accordance with the law.