暴露與觸摸性騷擾刑事責任 之探究 —以德國刑法的性騷擾規範為借鑑


林信銘

中文摘要

在德國刑法分則第13 章妨害性自主罪中,有兩個以騷擾作為 構成要件要素的條文。首先是德國刑法第183 條,其所處罰者係 藉由暴露行為騷擾他人的男性,而屬於暴露性騷擾的刑法規範。 其次是2016 年新增訂的德國刑法第184i 條,其係對於藉由與性 有關的身體觸摸而騷擾他人者科以刑事處罰,而屬於觸摸性騷擾 的刑法規範。相較於強姦等性犯罪的核心類型,上述兩個條文皆 在規範相對輕微的性犯罪,因此也面臨一些類似的困境與質疑。 自從1973 年現行德國刑法第183 條施行以來,許多文獻不斷 地從法益理論與實證研究的角度質疑其正當性。此外,甫於2016年新增訂的德國刑法第184i 條亦在其剛生效之際,即因其無邊無 際的構成要件範圍而遭到強烈批判。事實上,關於這兩個條文的 正當性疑慮,其實並不令人意外,甚至可以說是必然的結果。蓋 此二條文所處罰的行為雖亦屬對於個人性自主決定權的侵害,但 侵害的程度相當薄弱,因此在刑法最後手段性的思考之下,如此 刑法規範的正當性必然受到質疑,也必然面對如何予以限縮解釋 的挑戰。在性騷擾因me too 運動而成為熱門話題之際,本文希望 能夠透過對於德國刑法中性騷擾規範的介紹,提供台灣未來相關 刑事立法若干參考資料。

 

A Study on the Criminal Liability of Sexual Harassment by Exhibitionism and Physical Contact -Developed at Examples of the Criminal Regulation of Sexual Harassment in the German Penal Code

Sin-Min Lin

abstract

There are in the 13th Section of the special part of the German Penal Code on offenses against sexual self-determination two offenses, which have the criterion of harassment. The first of the two offenses is paragraph 183 of the German Penal Code, which punishes the harassment of another person by a male exhibitionist offense and is a criminal provision against sexual harassment by exhibitionism. The second offense of this type is the newly in the year 2016 inserted paragraph 184i of the German Penal Code, which punishes the harassment of another person by a sexual physical touch and is a criminal provision against sexual harassment by physical contact. In comparison to the crimes of the core area of the sexual criminal law, for example, the rape, the two criminal offenses are against minor injury of sexual self-determination. That is why the two criminal provisions are with similar legal problems. Paragraph 183 of the German Penal Code is since its legitimacy in the year 1973 again and again on the basis of the legal estate considerations in the theoretical and empirical literature on doubts. In addition, paragraph 184i of the German Penal Code is in the literature strongly criticized since its introduction in the year 2016 because of the lack of offense. The legitimation problems of the two provisions are not surprising, but inevitable consequence. Committed by the two regulations is the sexual self-determination. But the violation of sexual self-determination by these acts is very low. Due to the criminal ultima ratio principle must be reviewed on its legitimacy and the two provisions must be interpreted restrictively. Since the society because of me-too-movement focuses on the problems of sexual harassment, it seems even more necessary to give the Taiwanese legislators some hints to the criminal regulation of sexual harassment by the representation of the German legal situation.