寬嚴並進刑事政策之修法層次檢討──以刑罰謙抑性為例

Review on the revision level of tough and soft criminal justice - take the decline-restraint principle as an example

刑罰謙抑性又稱為「刑法的最後手段性」（ultima ratio），亦即為保護法益，在用盡一切非刑事法手段仍無法遏止損害持續發生之情形下，方有刑罰之發動謂之。最早是由日本刑法學者平野龍一所提出，其具有補充性、不完整性、寬容性等三層次之意涵；雖然目前各國刑罰謙抑性格之展現，大多可區分為「除罪化」、「除刑化」等兩種途徑，但其應仍有「寬嚴並進」之特性，本文透由文本之實證分析可知，雖鮮現於文義，但均充分表達於「法官不語」之判決中，在未來司法改革的進程中，或許尚可提供建構符合本土化、日常化、親民化的衡平刑事制度，做為反思現有制度革新之參考方向。

The decline-restraint principle is also known as the ＂Principle of Last Resort＂ (ultima ratio), which is to protect legal interests. Penalties can only be initiated when all non-criminal methods cannot be used to prevent damage from occurring. It was first proposed by Japanese criminal law scholar Hirano ryuichi (ひらのりゅういち), and it has three levels of meaning: complementarity, incompleteness, and tolerance. Although the current decline-restraint principle in various countries can be divided into two ways, ＂decriminalization＂ and ＂non-penalization＂, it should still have the characteristics of ＂tough and soft＂. Through the empirical analysis of the judgment, this article shows that although the literal meaning rarely appears in the text, it is fully expressed in the judgment of ＂the judge does not speak＂. In the course of future judicial reform, the decline-restraint principle may provide the construction of a balanced criminal system that is localized, routine, and people-friendly, as a reference direction to reflect on the existing system innovation.