論毒品危害防制條例與藥事法之「割裂適用」

The Concurrence of Pharmaceutical Affairs Act and Narcotics Hazard Prevention Act

行為人轉讓第二、三級毒品，若該毒品亦屬偽（禁）藥，實務多以法定刑較重之藥事法轉讓偽藥罪處斷，惟如行為人符合毒品危害防制條例第十七條供出毒品來源及偵審自白之減輕規定時，是否有其適用？實務認為，基於法律整體適用原則，自不得割裂適用藥事法及毒品危害防制條例。惟本文以為，實務向來有刑總、刑分加重減輕之區分，此處卻未予詳究，蓋刑分加重、減輕之規定已成為新的不法構成要件，自不得割裂與他罪適用，然該減輕規定核屬刑總減輕之規定，當無割裂適用之疑慮，否則將致如轉讓毒品數量達一定標準，回歸論處加重轉讓毒品罪之結果反可適用該減輕規定，顯為輕重失衡。

A man who transfers narcotics, which also belong to prohibited drugs, will be punished by the court with the Pharmaceutical Affairs Act rather than the Narcotics Hazard Prevention Act, which has lighter punishment. But if the offender in accordance with article 17 of the Narcotics Hazard Prevention Act, confessed the source of drugs or made his confession during the investigation and trial, this paper would like to discuss whether this situation has any possibility to be eligible for reduced penalties.  In practice, according to the overall principles of law applicable, the court will not lacerate the application of the Act of Pharmaceutical Affairs and the Narcotics Hazard Prevention Act. This paper thinks that the practice always has the distinction in the reduction and aggravation provisions between general principle and specifics of the criminal law, however it isn’t detailed discussed here.In the specific provisions of criminal law, the reduction and aggravation provisions have become the new illegal constitutive requirements. Thus, they shall not be applied separately. The Narcotics Hazard Prevention Act’s reduction regulation mentioned above, nevertheless, is one of the reduction regulations in the general principle of the criminal law, and that shall not cause any doubt in lacerating the application of regulations.  So, in the author’s opinion, in accordance with the custom of the special law complemented by the general law, the court shall apply the Act of Pharmaceutical Affairs and the Narcotics Hazard Prevention Act altogether in the penalty.