論兒少性交易之禁止與違反意願之認定──以兒童及少年性剝削防制條例第36條第3項為核心

The Prohibition on Sexual Transaction of Children and the Determination to Violation of Will- Focusing on Article 36 Paragraph 3 of the Child and Juvenile Sexual Exploitation Ordinance

兒童與少年應相較於成年人給予更多保護，已是我國社會具有的共識，這不論從生理乃至心理皆然。我國相關法制之建構對此亦已具備相當規模，如兒童及少年福利與權益保障法、少年事件處理法等。然而，針對社會上層出不窮的兒少性犯罪，其型態已不再限於典型的性交或猥褻行為，更擴及了拍攝與持有未成年人性影像等。對此，我國除了普通刑法第227條設有處罰對於兒少之性侵害行為外，更制訂了兒童及少年性剝削防制條例之特別法，另外廣泛地規範了相關涉及兒少性之行為的行政責任與刑事責任。
本文主要自兒童及少年性剝削防制條例第36條第3項之案例檢討出發，首先討論對於兒童及少年性交易（或性剝削）行為應採取如何的態度，本文基於對兒少性行為之禁止，因此對於兒少性交易也同樣認為應在禁止之列。接著在案例中出現的重要爭點：是否違反被害人意願，本文也將自學說不同看法加以檢視，提出本文看法：基於體系解釋，對於不符合前導例示規定之強制行為，概括條款係指涉利用被害人無助情境而言。最後，本文並將實務上在單一個案中提出「未得同意」亦為違反意願，此一超越我國現行法之規定是否合宜，一併加以檢討。

It is a consensus in our society that children and teenagers should be given more protection than adults in both physically and psychologically. The construction of relevant legal systems in our country has also reached a considerable scale, such as the Children and Juvenile Welfare and Rights Protection Law, the Juvenile Incident Handling Law, etc. However, regard to the endless stream of sexual crimes against children in society, the types are no longer limited to typical sexual intercourse or obscene behavior, but also include the shooting and possession of sexual images of minors. Hence, except draw up Article 227 of the general criminal law that punish sexual abuse of children and adolescents, our country has also formulated a special law on the prevention of sexual exploitation for children and adolescents. In addition, it has extensively regulated the relevant administrative and criminal responsibility that involved in sexual behavior of children and adolescents.
This article mainly starts from the case reviewing from Article 36, Paragraph 3 of the Child and Juvenile Sexual Exploitation Prevention Ordinance. It will first discusses of which attitudes that should be adopted towards the sex trafficking (or sexual exploitation) of children and adolescents. This article is based on the aspect to prohibit the sexual behavior of children and adolescents. Therefore, the sex trafficking of children and adolescents is also considered to be prohibited. Next, discuss the disputed points of whether it is against the victim’s willingness that raises in the case. Finally, raise up the opinion: Based on the interpretation of system, for coercive acts that do not meet the regulations from previous mentioned, the general clause refers to taking advantage of the victim’s helpless situation. Last but not least, this article will also examine the different views of self-study theory, and propose the opinions in conclusion. Besides, we will also review whether it is proper beyond our country’s current law to state that“without permission”is also a violation of willingness in a single case.