論日本最近的刑法修正

山中敬一 著;周慶東 譯

中文摘要

本文在論述近年來日本刑法上重要的修訂,首先就全面修訂的動向說明其歷程。其後採取部分修訂的方式來進行現代刑法的修法。主要的轉變有將刑法的舊式日文用語及語法轉換成白話。在各論方面也將修訂集中在支付用晶片卡電磁紀錄犯罪、危險駕駛致死傷罪、對國外犯之處罰、法定刑之重新修正、新設罰金刑、高科技犯罪與強制執行相關的犯罪修正上。

本文對於高科技犯罪與強制執行相關的犯罪作了較為詳細的敘述。在有關不正指令的電磁紀錄方面,新設有關不正指令的電磁紀錄、擴充散佈猥褻物等罪的構成要件、新設電子計算機損壞等業務妨害罪的未遂處罰規定。尤其針對將以往「以販賣目的而所持上開物品者,亦同」,修正為「以有償而散布之目的」,也處罰「保管電磁紀錄者」。平息了日本實務上以往對於猥褻的「動畫」是紀錄儲存在所謂硬碟上的「物」,並非是以媒體這樣的「物」來作為販賣的目的的爭議。在強制執行方面也透過新進的修正而對應經濟不振的社會現狀所產生的社會問題。

雖說日本新近的刑法修正目的是為了對應與當時不同的國際化,甚至是全球化的社會、網路社會的進化、受經濟狀況變化所引發的犯罪型態之變化,以及在國內犯罪被害者,甚至其遺屬對重刑化之要求所引發的國民對犯罪威脅的不安。但是作者也提出警語,不期望朝向過於傾向重罰主義的單薄安易的立法,而是當以作為刑法原則的謙抑性法益保護原則為基本,慎重處罰僅僅具有充分的當罰性及要罰性的行為的立法才是真正受人所期望的。

 

Japanese Newest Criminal Law Revision

Keiichi, Yamanaka(Author);Ching-Tung Chou (Trans.)

abstract

Japanese newest criminal law revision abstract this article in elaboration in recent years in Japanese criminal law important revision, first on the trend which revises comprehensively explains its course. After that adopts the part revision the way to carry on the modern criminal law to repair the law. The main transformation has the criminal law old-style Japanese terminology and the grammar transforms the vernacular. In will discuss the aspect also to revise respectively concentrates in the payment with the chip card electromagnetism record crime, dangerous driving sends the casualty crime, to violates the punishment, the legal line overseas revises, supposes the fine punishment, the high tech crime newly with enforces the correlation in the crime revision. This article with enforced the correlation regarding the high tech crime the crime to make a more detailed narration. In the related positive order electromagnetism record aspect, newly is not equipped with closes positive order electromagnetism record, crime and so on expansion dispersion indecent constitution important documents, newly does not suppose service hindrance crime and so on electronic accounting machine damage attempted punishment stipulations. Will aim at “but especially formerly trades the goal to hold these goods, also with”, the revision will be “goal of by the paid dispersion”, also punished “the storage electromagnetism record”. Has subsided in the Japanese practice formerly was the record stores up regarding indecent “the animation” on the so-called hard disk “the thing”, is by no means by the media such “the thing” took trades goal dispute. Was enforcing the aspect also to penetrate the recently revision to correspond the social question which the economical dispirited society present situation produced. Although the Japanese recently criminal law revision goal was in order to correspond with at that time the different internationalization, even was the globalization society, the network society's evolution, change the crime state which is initiated the financial circumstance change, as well as in domestic crime injured party, even its surviving family of deceased the national who initiated the severe sentence request to the crime threat restlessness. But the author also proposes aphorism, did not expect faces too favors the heavy fine principle the frail An Yi legislation, but is when by took the criminal law principle the modest and restrained law profit protection principle for basic, the prudent punishment has merely fully when punishes the nature must punish the behavior legislation is the human was expected truly.