黨產追討與誹謗罪之案例與分析

Speech About Ill-gotten Assets By Political Parties And Crime Of Defamation: Cases And Analysis

湯東穎(Tung-Yin Tan)

《黨產研究》 3期 (2018/10) Pp. 81-105

摘要

本文之目的在透過對司法判決之整理與觀察，探討我國實務在處理「不當黨產相關言論」此一爭議類型適用於刑法誹謗罪之判斷時，所採用之審查基準與判斷因素。經本文檢討認為，法院在審理類似案件時，除主要依循刑法第310條及第311條及歷來實務以上開法律規定為基礎所建立之判斷架構，將言論之性質區分為「事實陳述」與「意見表達」，分別適用「實質（真正）惡意原則」及「適當（合理）評論」原則為判斷基準外，在有關不當黨產言論之爭議類型，亦可觀察到司法判決存在以下思考傾向：（一）不當黨產處理條例草案之立法背景，以及監察院有關不當黨產之調查報告等，可作為表意人有相當理由確信不當黨產存在之證據基礎；（二）不當黨產監督言論之價值，應由國民透過選舉等民主機制進行篩選及判斷，不應輕易以刑罰權干預，對司法介入相關言論之審查，表現高度自制之態度；（三）審查過程重視中國國民黨長期執政之歷史地位及社會影響力，認為對於不當黨產相關言論屬與公共利益重大攸關而可受公評之事，應受最大限度之保障。在前述司法實務的思考脈絡下，2016年及2017年相繼通過之「政黨及其附隨組織不當取得財產處理條例」及「促進轉型正義條例」，在未來是否會對於類似案例與刑法誹謗罪之適用關係產生影響，特別是可否作為相關言論之事實真實性及可受公評性之論據，頗值得後續觀察。

關鍵字

不當取得財產 ； 黨產追討 ； 誹謗罪 ； 實質惡意原則 ； 適當評論原則 ； 言論自由

並列摘要

This article aims at, through an approach of precedents analysis, an exploration of the judgment criteria and factors employed by Taiwan's judicial practice in cases where whether speech about ill-gotten political party assets constitutes a crime of defamation is in dispute. This article points out that, for these types of cases, the courts basically follow the long-established review frame developed and formed by the practice for the crime of defamation under Article 310 and Article 311 of Taiwan's Criminal Code. That is, apart from abstract abuse, categorizing speech in dispute in terms of the nature of speech into ＂statements of fact＂ and ＂expressions of opinion,＂ and accordingly uses the actual malice rule for the former and the principle of fair comments for the latter as its judgment criteria. However, more than that, the following characteristics can be specifically identified in these kinds of controversies: (1) the legislation history of the law governing the settlement of ill-gotten assets by political parties and the Control Yuan's related investigation report provide a strong basis for evidence indicating that speakers, with sufficient reasons, truly believe the existence of ill-gotten assets by a political party, which may deny the speaker's actual malice; (2) because the issues regarding ill-gotten assets by political parties are a field of a highly public nature, the court takes a self-constraint attitude toward these kinds of cases, specifying that the these speeches' value should be considered and decided by nationals through a process of democratic mechanisms, instead of through the judicial system or being easily intervened due to criminal penalties; (3) the judicial review also considers the historical status of the Kou Ming Party which was the ruling party in Taiwan for decades, and even now it still has great social impact, along with its ability to defend itself though public media, and holds the opinion that the related speech is of high public concern and should be protected and tolerated to a maximum extent. Based on the judicial practice's thinking as mentioned above, it is worth observing whether the passage of legislation in 2016 and 2017, including ＂The Act Governing the Settlement of Ill-gotten Assets by Political Parties and Their Affiliate Organizations＂ and ＂The Act for Promotion of Transitional Justice,＂ could have any impact on the judgment in similar cases going forward, in particular whether the laws offer a basis to justify the argument that this kind of speech should be viewed as fair comments on a fact subject to public criticism.

並列關鍵字

ill-gotten assets by political parties ； the recovery of assets ill-gotten by political parties ； crime of defamation ； actual malice ； the principle of fair comments ； free speech