2012年刑事法發展回顧：法律問題之事實與表述

Developments in the Law in 2012: Criminal Law

我國刑事法在2012年的發展，引起社會上較多討論的是醫療過失是否應除罪化，以及大學教授之公務員身分爭議問題。立法修正者有刑法第286條的凌虐幼童罪，以及對懲治走私條例第2、4、13等條文之授權條款做較為明確的文字規定。雖然行政院院會另外也通過包括刑法第185-3條在內的若干修正草案，不過都尚未經立法院審議通過。此外，本年度大法官並無關於刑法問題的解釋，至於最高法院刑事庭會議，議題不多，幾乎全部集中在特別法中所謂販賣的定義，以及因此衍伸出來之周邊文字解釋問題。最高法院關於對兒童或少年強制性交的法規競合問題，有出現見解轉折的情形。除此之外，亦有個別判決看法與通說有某程度落差，值得注意。

This paper is intended to review the developments in criminal law in Taiwan in 2012. Two most discussed criminal law issues in this year were whether medical negligence should be decriminalized and whether a university professor should be harshly punished as a government officer. Several criminal statutes were modified: Article 286 of the Criminal Law (Offense of Child Abuse) and Article 2, 4 and 13 of the Smuggling Act. The revisions of the Smuggling Act were to clarify the scope of punishment. The government proposed to revise Article 185-3 of Criminal Law. But these proposals have yet been accepted by legislators. In the year of 2012, the Council of Grand Justice made no interpretations related to criminal law. As to the Supreme Court, judges in criminal divisions spent most of their time on the definition of ‘sale’ and some related issues. In this year, we can see that the Supreme Court has changed its mind on the concurrent applications of child rape or juvenile rape. In addition, some attention should be paid on the discrepancy between certain court decisions and prevalent legal theories.