刑法作為抗制「數位暴力」之手段──以惡意影音為例

Criminal Law as a Means of Regulation against Digital Abuse

面對數位溝通模式的快速轉變，衍生出眾多侵害人格法益的數位暴力類型。若是現有的分則各罪無法有效保護人格法益，唯一的選項就是修法。可惜的是，我國立法者並未通盤檢視誹謗罪與妨害秘密罪的規範結構，而在沒有完善既有的各罪規定之下，擬額外增訂刑法第319條之1至第319條之4規定。雖然新法看似積極對抗數位化的惡意影音，但過度限制在與性相關的領域，恐怕只是一種現象立法。於此，不只是規範的成效有限，而且法適用結果將與現行的各罪規定產生不少的價值衝突。

In the face of rapid changes in digital communication, many types of digital violence that infringe on the legal interests of personality have emerged. If it is the existing division, each crime cannot effectively protect the legal interests of personality, and the only option is to amend the law. It is a pity that our country’s legislators have not comprehensively examined the normative structure of the crime of defamation and the crime of obstructing secrets, and without perfecting the existing provisions of each crime, they intend to add additional provisions of Article 319-1 to Article 319-4 of the Criminal Law . Although the draft amendment seems to actively fight against digital malicious audio and video, excessive restrictions on sex-related areas are probably just a phenomenon of legislation. Here, not only is the effectiveness of the norms limited, but also the results of the application of the law will produce a lot of value conflicts with the current provisions of various crimes.