重構刑法公然煽惑違背法令罪－兼評太陽花學運佔領立法院案

刑法第153條公然煽惑違背法令罪的構成要件顯過於寬鬆，一方面為避免株連過廣，有違刑法最後手段性（ultima ratio），一方面又為維持風險抗制的積極功能，本罪實有自理論源頭重新檢視的必要。本文擬自立法論追溯本罪的立法沿革，並比較與德國刑法第110條及第111條的異同，繼而從解釋論探討本罪規範目的與保護法益，先闡明公共安寧秩序、公眾安全感與規範效力的信賴皆不足採，進而提出以「連結潛在行動自由的公眾安全感」作為保護法益，且該安全感以源自法益侵害與否的估算與評價為限。如此不僅使純粹內部的情緒反應得以進入刑法得介入解決的外部衝突領域，亦可排除與人類經營社會生活所需基本條件無關的心理狀態，進而取得普遍有效性。基此，個別構成要件應限縮解釋。本文將以近期最具爭議性的【太陽花學運佔領立法院案】為例，期望重新建構本罪更完整的圖像，以供實務界具體的規範性判準及未來刑事立法的參考。

關鍵字

刑法第153條；煽惑；公然煽惑違背法令罪；連結潛在行動自由的公眾安全感

並列摘要

Article 153 of the Criminal Code: Public Incitement to the Violation of Laws or Regulations should be re-examined because of the obvious leniency of its constituent elements. The leniency may render the scope of its application too broad instead of being used based on the principle of last resort (＂ultima ratio＂); on the other hand, it is vitally important to maintain the positive function of risk resistance. Therefore, it is imperative to re-examine this Article from its theoretical framework. In this paper, the legislative theory (de lege ferenda) is applied to trace the legislative evolution of this crime and then a comparison is made between this crime and German Criminal Code Articles 110 and 111. Next, the interpretation theory (de lege lata) is applied to probe into the purpose and the protected legal interest of this crime. It is first clarified that the 3 proposals to take public peace order, public security and the reliability and validity of norms as protected legal interests are not very persuasive. Instead, the concept of ＂public security connected to potential freedom of action＂ should be taken as the protected legal interest. However, the sense of ＂public security＂ should be limited to the assessment and evaluation of the infringement of a person's legal interests; thereby, what is considered purely internal emotions can be assessed as external conflicts where criminal law can be applied. Moreover, taking ＂public security connected to potential freedom of action＂ as the protected legal interest also confirm common validity of the law because it excludes the unevaluable psychological states unrelated to basic needs in human social life. Based on the theory, restrictions should be placed on the constituent elements of the crime. Finally, the most controversial case of Sunflower Student Movement is analyzed. It is hoped that a more complete picture of this crime can be constructed so as to provide more concrete judgment standards in practice and offer some food for thought for future criminal legislation.