虛假消息散布處罰正當性之檢討──以食安法第46條之1為標的

Reviewing the Legitimacy of Punishment for Spreading Misinformation: Set Article 46-1 of the Act Governing Food Safety and Sanitation as the Target

對於2019年6月新增之食品安全衛生管理法第46條之1：「散播有關食品安全之謠言或不實訊息，足生損害於公眾或他人者，處三年以下有期徒刑、拘役或新臺幣一百萬元以下罰金。」在憲法層次，就基本權利的限制利益衡量上是否必要，毋寧仍存有相當的違憲疑義。本文認為此一對於言論自由的限制，其不法性實可下降至民事法律或行政罰鍰層次。因此，食安法第46條之1對言論自由的附屬刑法如果不賦加主觀意圖等限制要件以為衡平時，即應予廢除，而將保障交由民事侵權行為或行政罰鍰加以保障即可。至於其他如食安法第49條第2項其他據此衍生出的變體構成要件性質之加重處罰類型，自然也失所附麗，而無處罰之必要。

For Article 46-1 of the Act Governing Food Safety and Sanitation which added in June 2019:“A person who disseminates arumor or incorrect information concerning food safety and thus causes damage to the public or others shall be punished with imprisonment for not more than three years, detention, or afine of not more than NT$1,000,000”, there is still doubt about unconstitutionality due to whether it is necessary to measure the interests of fundamental rights. This essay considers that the punishment of illegality for limiting freedom of speech could be declined to the level of civil cases and administrative fines. Besides, this essay also advocates that subsidiary criminal law which is aimed at freedom of speech in Article 46-1 of the Act Governing Food Safety and Sanitation, should be abolished if it does not impose restrictive elements such as subjective intentions as amatter of equity. Instead, entrusting the guarantee to civil torts and administrative fines is sufficient. As for Article 49-2 of the Act Governing Food Safety and Sanitation, and other variable elements of aggravating penalties which derives from factors above, there is no need for punishment since it just loses the legal basis.