侵害著作權的行為數認定問題

犯罪事實能否判定為集合犯，關鍵在於就規範與刑罰目的為價值判斷後，透過對構成要件的解釋，認為是否屬於法律意義上的一行為。評價的對象可以是自然意義的一行為，也可以是自然意義的數行為，但在評價結果上成為行為單數，反覆實行只是對概念特徵的現象描述。德國實務固然揚棄了以集合犯的使用作為行為單數的認定手段，其後卻發展了評價單數的概念，並以之使用於「手段或方法不斷實現構成要件」時；侵害著作權的行為數認定問題，不論繼受評價單數，或將集合犯予以概念續造，均屬可行，遑論德國著作權法刻意於第108a條創設常業犯規定。

關鍵字

著作權侵害；行為單數；評價單數；集合犯；常業犯

並列摘要

An offence if it’s determined as collective crimes is a matter of assessing the norm and the purpose of punishment in terms of the explanation of elements of an offence we regard it as a single conduct in law. Although the object of evaluation could be one or several conducts of natural meanings, the result of the evaluation will be considered as a single unit. Performing over and over is nothing but a description of a phenomenon about the feature of the concept. There is no reason to reverse that legislator did not put the offence which is discussed predestinating the standpoints as several conducts into consider only because the copyright infringement by duplicated or spread might be done once. Even though the jurisdiction tried to carry out ”one offence, one punishment” policy expressed in the amendment of criminal law in 2005, there are still insufficient reasons to put plural acts as plural offences. Although the German Jurisdiction gives up using the concept collective crimes to serve ”unit” judgments, ”evaluation unit” has been developed as a result and applied for methods or ways which could comprise crimes. It is possible to work out ”evaluation unit” or to extend the concept of collective crimes while we solve the problem about how to determine the quantity of copyright infringement, not to mention the German copyright law has established the ”occupational crime” in Article 108a with intensive attention.