刑法解釋與適用之憲法界限──近期刑事判決之綜合評析

The Constitutional Limitation of the Interpretation and Application of Criminal Rules: Commentary on Recent Criminal Judgements

隨著裁判憲法審查制度上路，刑法解釋適用的憲法界限將成為憲法法庭與刑事法院共同關注的議題，憲法法庭必須逐步建構對於刑法解釋適用的憲法要求，刑事法院必須在解釋適用刑法時兼顧憲法意旨。在此一制度背景底下，本文藉由分析若干近期司法實務的重要裁判，闡述罪刑法定原則、罪責原則與比例原則對於刑法解釋適用的拘束力，指出未來值得努力的方向。一方面，本文建議大法官具體化解釋明確性要求的審查標準、承認最有利原則的憲法位階、釐清罪責原則的內涵和理論基礎；另一方面，本文認為刑事法院在刑法解釋適用上已經逐漸重視憲法基本權利與比例原則的重要性，偶爾為了個案處罰或彈性適用法律而踩到憲法紅線，尤其忽略類推適用禁止與解釋明確性要求，並且濫用客觀（加重）處罰條件概念而架空罪責原則，宜儘速檢討改進。

With the enforcement of the judicial review of the court decisions, the constitutional boundaries of the interpretation and application of criminal rules will become a common concern of the constitutional court and the criminal court. The constitutional court must construct the constitutional requirements for the interpretation and application of criminal rules progressively, and the criminal court must take into account the constitutional intent while interpretating and applying the criminal rules.
Under this institutional context, this article analyzes some important recent judgements to illustrate the impact of the principle of legality, the principle of culpability, and the principle of proportionality on the interpretation and application of criminal rules.
On one hand, this article suggests the grand justices should concretize the review standard of the principle of clarity, recognize the constitutional status of the most favored principle, and clarify the content and theory basis of the principle of culpability. On the other hand, this article claims that criminal court has gradually valued the importance of constitutional fundamental rights and the principle of proportionality while interpreting and applying the criminal rules. However, the criminal court has also stepped on the line of constitutional law for specific cases and for flexible application of the law especially by ignoring the principle of prohibition analogy and the interpretative clarity standard as well as abusing the objective criminality condition, thus hollowed the principle of culpability. This situation should be reviewed and improved as soon as possible.