持有概念與持有毒品罪——從最高法院104年度臺非字第199號判決談起

The Criminal Offense of Possessing Narcotics and the Possession

就持有毒品行為之處罰，自一九五五年「戡亂時期肅清煙毒條例」開始，到一九九二年「肅清煙毒條例」、一九九七年「毒品危害防制條例」，可以說對於毒品的刑罰法規，從立法之後就一直有對於意圖販賣而持有、單純持有的處罰。從立法資料上觀察，臺灣至少自一九九○年代起，即有毒品氾濫的問題存在，立法者對於毒品問題的處理與對於毒品犯的應對，大抵上從過去較為寬容的「病人」觀點到現在毫不掩飾的嚴罰手段。然而，從行為原理與行為概念的觀點來看，持有毒品的處罰有其問題，本文即嘗試就此問題加以檢討，並且認為可以透過除刑化來解決問題。

This article aims to examine the criminal offense of possessing narcotics and its element “possession”. From the establishment of the “Drug Control Act during the Period for Suppression of the Communist Rebellion” (1955) until now, the criminal offenses of possessing narcotics and of possessing narcotics with intent to sell have been held punishable by the Taiwanese legal system. From 2003, legislators passed law that severely punishes those who possess narcotics that violate the legal standards. According to the legislation documents, drug abuse has become a very serious problem in Taiwan since at least 1990. Drug laws are usually considered and the government has been tightening the law continuously. However, from the point of view of “Tatprinzip” and the concept of “Tat”, there is some doubt whether the punishment of Possessing Narcotics is legitimate. This article aims to discuss the aforementioned issues and make suggestions. It is concluded that most of the issues can be resolved through depenalization.