公務員對違法命令執行的刑法責任

Criminal Liability held by Public Servants for Enforcement of Illegal Orders

上級公務員的命令正當性，源自於法律及法律授權，下級公務員有執行義務，若命令違反法律規定，即無服從義務。公務員命令是否合法，除須審查符合形式要件外，尚須客觀判斷命令內容有無違反法律規定，以及具備命令要件。上級公務員利用下級公務員執行違法命令，應就下達的行為負責，下級公務員明知違法命令而執行，即應與上級公務員成立共同正犯；若命令形式合法，即使實質上違法，下級公務員仍不須負責，除非命令明顯違反職權的法律，下級公務員即須負責。上級公務員不知下達違法命令，行為即是過失，過失違法命令即無法成立間接正犯、教唆犯，且非舉動犯犯罪類型，行為若無造成侵害，基於法定原則，形成無法可罰，因此，上級公務員下達干預人民自由權利命令，應特別謹慎，以保障人民權利。

The legitimacy of orders given by superior public servants originates from the law, as well as the authority permitted by law while inferior public servants are obliged to enforce the orders assigned to them. However, inferior public servants are not obliged to enforce illegal orders. In addition to formality, the legality of orders issued by public servants shall be determined by objective judgments over violations against laws and by the essential factors for giving orders. Superior public servants shall be held responsible for the conduct of giving an illegal order when they request their subordinates to enforce it. Inferior public servants, together with superior public servants, shall be considered as joint principal offenders in case both are aware that the orders given by their superiors are illegal. If the order of formal is legal, even if it is virtually illegal, inferior public servants are still not responsible for this matter. Unless the order clearly violates the law of authority, then they need to be responsible. Superior public servants who are not aware that they are issuing illegal orders should be considered negligent. Illegal orders given with negligence do not constitute the fact to be an indirect principal offender or accessory offender. Moreover, the superior public servants cannot be deemed as behavioral offenders. If the superiors' behaviors cause no harm, no punishment shall apply in accordance with the principle of legality. As a result, superior public servants giving orders that can interfere with people's right of freedom should be more prudent for protection of human rights.