從「妨害風化的猥褻物品」到「妨害性隱私的性影像」──散布性關聯影音圖像之不法性質

From“Obscene Articles in Infringing Sexual Customs”to“Images or Videos Infringing Sexual Privacy”─The Illegal Nature of Distributing Sexual Images or Videos

本文旨在探討刑法散布他人性影音的不法評價內涵變化。在過去，此類行為可罰性來自行為人對社會風化的破壞，也隱含有多數人主觀上對於性行為公開化這件事的貶抑情緒。此類行為的不法評價，在近來修法趨勢中產生微妙的轉變，逐漸表現為非難行為人「利用此一風化觀念的存在，而對當事人人格所生之貶抑」。此種表面上看似保護個人的規定，仍內含性的道德要素，可見傳統上妨害風化與妨害性自主的二元法益並立關係並非絕對。此要素既已內化為個人人格核心領域的一環，刑法介入仍有一定理據，惟是否能進一步促成對妨害風化罪的檢討，尚待觀察。

The purpose of this research is to explore the changes in the connotation of legal evaluation of the dissemination of other people’s sex-related images in criminal law. In the past, the criminal liability of such behavior came from the perpetrator’s violation of sexual customs. The punishment also reflected the subjective negative sentiment of the majority towards the “publicization of sexual behavior”. However, aThe purpose of this research is to explore the changes in the connotation of legal evaluation of the dissemination of other people’s sex-related images in criminal law. In the past, the criminal liability of such behavior came from the perpetrator’s violation of sexual customs. The punishment also reflected the subjective negative sentiment of the majority towards the “publicization of sexual behavior”.
However, a subtle shift in the evaluation of this type of behavior can be seen in the revisions of the criminal law. The criminal liability is instead regarded as the perpetrator’s “use of the existence of this custom in order to degrade the person’s personality”.
The traditional duality of the two legal entitlements, the sexual customs and the sexual autonomy, should not be considered as absolute. Because these regulations, which seem to protect individuals at first sight, still contain sexual moral elements. Since the elements have been internalized as a part of the core field of personality, the interference of criminal law still seemed to be legitimate. However, it remains to be seen whether it can further promote the review of the crime of infringing sexual customs.
subtle shift in the evaluation of this type of behavior can be seen in the revisions of the criminal law. The criminal liability is instead regarded as the perpetrator’s “use of the existence of this custom in order to degrade the person’s personality”. The traditional duality of the two legal entitlements, the sexual customs and the sexual autonomy, should not be considered as absolute. Because these regulations, which seem to protect individuals at first sight, still contain sexual moral elements. Since the elements have been internalized as a part of the core field of personality, the interference of criminal law still seemed to be legitimate. However, it remains to be seen whether it can further promote the review of the crime of infringing sexual customs.