陸海空軍刑法衛哨兵失職罪之研究──以危險犯為中心

Study on the Crime of A Guard or Sentry Neglect the Duty from Criminal Code of the Armed Forces- Focusing on Dangerous Offense

衛哨兵廢弛職務的犯罪行為，我國陸海空軍刑法第34條及第35條定有衛哨兵廢弛職務罪及不到或擅離勤務所在地罪之處罰態樣。二者雖皆採危險犯的立法方式，但在要件設計上卻有所不同，二者性質究為抽象危險犯或具體危險犯？「足生軍事上之不利益」及「致生軍事上之不利益」又該如何理解？本文擬從實務刑事判決為評析，進而探討兩罪之要件及性質，希冀給予適切的立法建議。

When it comes the criminality of the guard and sentry, per article 34 and 35 of Criminal Code of the Armed Forces, it has legislated the punishment if the guard or sentry who takes the duty of guarding on the alert neglects the duty or makes unauthorized absence or departure. The aforesaid two articles are legislated on the crime of danger basis, however, there are much difference among its elements, should these two be deemed as ＂the crime of abstract danger＂ or ＂the crime of concrete danger＂? How should we consider and describe the elements of ＂causing injury to military interests＂? This article intends to analyze the adequacy of such opinions adopted by court, then proceed discussing the elements and the nature and wish to provide the comments to legislation affairs appropriately.