論國軍懲罰制度導入「違失行為一體性原則」

A Studyand Legislative Proposals on the Armed Forces Punishment System Applying the Principle of Oneness of Wrongful Acts

陸海空軍懲罰法第7條第2項規定及實務見解認為，一人為數違失行為者，應分別懲罰，可證國軍懲罰之對象乃「違失行為」，而非「人」，此點與公務員懲戒制度所採「違失行為一體性原則」有所不同。但現役軍人為武職公務員，其與國家間形成了軍事勤務關係，此關係即為國軍懲罰目的所欲確保之法益；因此，對於軍人之違失行為施以懲罰，其本質應係對其所有違失行為彰顯之人格瑕疵，一次性的進行整體評價，藉以判斷軍人身分適任性格或應給予一定懲罰訓育、警告措施。現行法與軍人懲罰本質有相扞格之處，進而在法制上應如何調整配合，不無探究之餘地。

According to Article 7 paragraph 2 of the Armed Forces Punishment Act, one person who commits several wrongful acts shall be punished separately for each act committed, which proves that the object of punishment by the national army is“wrongful acts”rather than“personality”. This is different from the“Principle of Oneness of Wrongful Acts”adopted in the Civil Service Discipline system. The Active Service Men are also Civil Servants, and they have formed a military service relationship with the state, and this relationship is the legal interest that the national army must ensure for the purpose of punishment. Therefore, the essence of imposing punishment on the wrongful acts of the Active Service Men should be to conduct a one-time overall evaluation of the personality flaws displayed by all their wrongdoings, so as to judge whether the military personnel's identity is suitable or should be taken certain punishment measures. The contradiction between the current law and the essence of military punishment, and how to adjust and cooperate in legislative policy, is worth studying.