論施用與供應毒品行為之可罰性

毒品戰爭永無休止，我國長期以來多採取嚴刑峻法，作為毒品問題的回應，然而以刑罰作為管制手段，必須釐清各行為的本質與可罰性基礎。本文首先從柔性家長主義立場，認為本質為自傷行為的施用毒品行為，出於「認識瑕疵」與「成癮狀態」所導致的自願性不足，國家確實應予以干涉，惟以刑罰作為干涉手段而言，管制方式應採取間接家長主義，透過限制毒品提供者，避免施用者非自願之自傷。接著，本文以自由法概念下「普遍有效性」為要件的法益概念，檢視施用毒品罪之正當性基礎，包含善良風俗、國計民生、國民健康及後續犯罪等，本文認為此等關於施用毒品行為外部負面影響的指摘，均不足支撐施用毒品罪之正當性，並且透過各概念背後社會意義的觀察，可理解社會大眾敵視毒品的緣起，大抵來自社會多數所抱持的資本主義精神，以及將施用毒品與其他犯罪行為的關聯性過度膨脹。本文接續檢視販賣毒品罪、持有毒品罪與製造、運輸毒品罪，認為販賣毒品行為的可罰性基礎，乃在於無以確保施用者自願性卻仍提供毒品，造成施用者非自願之身體、生命法益侵害，以此為基點，對於刑罰過於前置的持有毒品類型與製造、運輸毒品類型予以否定，並對製造、運輸、販賣毒品罪之可罰性時點亦予以限縮。最後，考量提供毒品行為的可罰性基礎，本文對現行毒品分級制度進行檢討，認為應以「成癮性」與「傷害性」取代現行模糊的分級標準，並建議將低成癮性與低傷害性之娛樂性用藥納入國家監管，由國家擔任確保施用者自願性的角色，建構合法提供娛樂性用藥的管道，使施用者有實踐自願娛樂用藥決定的可能。

關鍵字

施用毒品；販賣毒品；持有毒品；製造毒品；運輸毒品；法律家長主義

並列摘要

The war on drugs continues till this day. Over a long period, Taiwan has had strict laws and harsh punishments in place to address the drug problem. However, it is necessary to identify the nature and culpability of various acts where criminal penalty was used as a means of drug control. From the perspective of soft paternalism, this study first argues that the use of drugs, which is essentially a self-mutilation act, does warrant government intervention because of the insufficient voluntariness arising from “defective belief” and “addiction.” As a means to intervene in drug use, however, criminal penalty should be based on the principle of indirect paternalism. The objective is to prevent the involuntary self-mutilation of drug users by restricting drug supplies. From the perspective of “legal goods,” which comprises the element of “general validity” in the substantial concept of law, this study then examines the justification(e.g., good customs, national economy, people’s livelihood, national health, and subsequent crimes) for incriminating the use of drugs. This study argues that censures of the external negative impacts of drug use are not enough to support the incrimination of drug use. According to the observation of social significance, this study finds that the masses’ hostility toward drugs is largely due to the capitalist spirit that the majority of people have, as well as an overstatement of the correlation between drug use and other criminal acts. This study subsequently examines the culpability of the crimes of drug trafficking, possession, manufacturing, and transportation; it also shows that the culpability of drug trafficking lies in the failure to ensure that drug users are voluntarily provided with drugs, thus resulting in an involuntary infringement on their legal goods of body and life. Accordingly, excessive pro-active criminal penalties on the possession, manufacturing, and transportation of drugs should be denied, and the time of attempt should be reconsidered. Considering the culpability of drug supplies, this study finally reviews the drug grading system that is currently in effect. This study holds that the unclear existing drug grading standards should be replaced with “addictiveness” and “harmfulness,” and recommends that recreational drugs with low addictiveness and harmfulness should be brought under national supervision. Specifically speaking, governments should play a role in ensuring that drug use is voluntary and in building lawful supply channels of recreational drugs; doing so would make it possible for people to exercise their rights of self-determination of using recreational drugs.