同性婚姻釋字後的通姦罪解釋及其因應：從司法院釋字第554號到第748號解釋

The Interpretation and Application of the Crime of Adultery After Same-Sex Marriage Case: From the J.Y. Interpretation No. 554 to No. 748

司法院釋字第748號解釋（下稱「釋748」）肯定了同志的婚姻平等權利，同時，此號解釋也涉及相關法領域的配套修正，對既有的社會秩序有所衝擊，而刑法第239條通姦罪存廢討論及解釋適用即為其一。從釋748的角度析論通姦罪解釋適用之可能疑義，我們可以發現，該號解釋已表明其僅針對同性伴侶婚姻自由部分的平等保護而「不及於其他」，據此不會推論出通姦除罪之結論；且因其多次強調「承認同性婚姻並不會影響既有異性婚姻所建構的社會秩序」，這意味著在釋748架構下同性、異性婚姻背後各存有之價值利益不同並有所差異，若此再乘以釋554透露通姦罪背後所蘊含將婚姻與生殖功能結合色彩則可認通姦罪所要保障的婚姻秩序也可能僅是專屬於「既有異性婚姻所建構的社會與倫理秩序」的一種而自始與同性婚姻無涉。因此，現階段我們實難直接以釋748作為通姦罪保護法益及於同性婚姻、通姦行為要件之解釋應包含至同性配偶的婚外性等立論。至於異性、同性配偶婚外性均罰一說，也僅是形式上的平等，釜底抽薪之道，仍應回歸到通姦應刑罰性等實質思考。本文一方面爬梳通姦罪於我國立法論及司法裁判面之討論現狀及爭議，另方面析論普通法院關於通姦罪裁判實務可能受釋748之影響及因應，並提供建議。 The unveiling of the Judicial Yuan Interpretation No. 748 (hereafter No. 748), in which the Constitutional Court affirmed the right to marriage of same-sex couples, has pushed for many legislative amendments in relevant areas of law, the result of which has been a profound impact on the existing social order. The crime of adultery under the Article 239 of the Criminal Code is already feeling that impact, with its existence and application facing new challenges. This article argues that, since the No. 748 has made it abundantly clear that it only addressed the equal protection of the freedom of marriage for same-sex couples and “does not deal with any other issues,” the Interpretation itself could not lead to the conclusion that the crime of adultery had been decriminalized. Furthermore, as the Interpretation repeatedly states that the recognition of same-sex marriage will not “alter the social order established upon the existing opposite-sex marriage”, the Interpretation seems to imply that behind different-sex marriage and same-sex marriage stand different values and interests. On top of that, when we take Court’s view in the Judicial Yuan Interpretation No. 554 into account, we will come to an inevitable conclusion that, since the crime of adultery binds marriage and its reproductive function, the social order the crime of adultery has sought to protect is one that was constructed by different-sex marriage, and thus the social order created by the now legalized same-sex marriage falls outside the scope of the crime of adultery. At this point in time, it would be too hasty to say that the legal interest the crime of adultery aims to protect have extended to that of the same-sex couples after the No. 748. As to the argument that adultery committed by persons under different-sex marriage and same-sex marriage should both be penalized under the crime of adultery, the result of such expansion is merely formal equality. To escape the dilemma, we must look further into the necessity of punishment of this particular crime. This article will review the legislative and judicial aspect of the current discussion on and controversies surrounding the crime of adultery, and analyze how the ordinary courts might react to the No. 748. Finally, the article will present recommendations.