初探家庭與親密關係暴力之法律規制：以臺日民事保護令及其罰則為中心

Domestic Violence Prevention and Civil Protection Order

本文以家庭暴力與親密關係暴力的法律規制之探討為目的，以臺日家庭暴力防治法制中之民事保護令及其罰則為論述核心。由於臺日就家庭暴力法律規制在規範內容上有相似性與差異性，分析其異同對於臺灣法之檢討有其助益，因此，本文以臺日家庭暴力防治相關法制為比較法研究之對象。文中整理臺日家庭暴力法制中有關民事保護令之規範及罰則，著墨於臺日保護令制度之建立與擴張及修法過程中之思考，並以之為研究素材，嘗試探究以下具體問題意識，如家庭暴力與一般暴力行為之差異性，乃至於家庭暴力防治立特別法之必要性，將性少數親密關係暴力納入家暴法律規制範圍之意義，臺日家暴法之發展及其規制狀況之分析，民事保護令之意義及機能，家庭暴力罪與違反保護令罪之法益等問題。 This article aims to discuss the law and regulations of domestic violence and intimate partner violence. The Domestic Violence Prevention Act is a comprehensive legislation, and there are many points worth discussing. Among those, this article especially focuses on the civil protection orders and their penal provisions when it comes to violating a civil protection order. In order to answer the issues below, this article compares and contrasts the regulations of the civil protection orders in the Domestic Violence Prevention Act in Taiwan and the Act on the Prevention of Spousal Violence and the Protection of Victims in Japan. The reason why this article used the comparative law method to explore the Japanese law is because 1) the Taiwanese law and the Japanese law have similarities and differences, and 2) the comparative analysis is useful to examine the Taiwanese law. This article focuses on several issues, specifically. For example, first, it aims to identify the characteristics of the domestic violence to the general crime, and to discuss if it is necessary to make a special law, the Domestic Violence Prevention Act, and if it is necessary to establish a new system for domestic violence prevention. Related to this point, the article also specifies that even if the same-sex couple relationship is not considered a family or marriage yet in Taiwan and Japan, the domestic violence victim within the same-sex couples’ relationship is still protected by the Taiwanese and Japanese law system, and how it is practiced. Second, the article examines the problems of the Domestic Violence Prevention Act in Taiwan and the Act on the Prevention of Spousal Violence and the Protection of Victims in Japan, such as the expansion of a scope and the definition of domestic violence. Third, there is a discussion about the legal interest of the offense of domestic violence and the crime of violation of a protection order, and the articles deliberates if the crime of violation of a protection order is against basic principles of Penal Code.