從謀反到內亂罪──規範、制度與思想之考察

"From Rebellion to the Crime of Civil Disturbance: A Survey of Norms, Systems and Thoughts"

為維護國家之存立，歷古以來無不定有國安法制，舊律稱「謀反」，為十惡之首。在封建王權時代，「朕即國家」，反對皇帝就是反叛國家，不滿一姓一族之統治，即被視為叛國。自1911 年辛亥革命後，中華民國改行共和政體，摒棄「家天下」思維，「叛國」罪行之定義與詮釋，亦應賦予新解。但我國憲法未課以人民效忠國家之義務，國民對國家之忠誠，僅係觀念中之一種假設的國家倫理；從而，人民雖然不應反叛國家，但亦不容許國家對國民任意加以處罰，僅限於以暴力方式對國家政體、憲政等基本組織有所背叛，始成立內亂罪，並不及於意見之和平表達。用是，內亂罪是否仍有規範之必要？該為如何之政策選擇？本文爰檢視其歷史內涵、當代考驗，並觀察兩岸關係之定位及其中變化，提出現階段思索路徑與開展動向。

"In order to maintain the country's existence, National Security Acts have been in place since ancient times. The Tradition Law called“rebellion”, which is the first of the Ten Evils, and has always been the most severely punished crime under the dictatorship for thousands of years. In the era of feudal monarchy,“I am the country”. To oppose the emperor is to rebel against the country. Dissatisfied with the rule of one surname and one clan is regarded as treason. Since the 1911 Revolution, the Republic of China has changed to a republican government and abandoned the family world thinking. The definition and interpretation of the crime of“treason”should also be given a new interpretation. The constitution of our country does not teach people the obligation of loyalty to the country. The loyalty of the people to the national ethics is only an assumption in the concept. Therefore, although the people should not rebel against the country, it does not allow the country to punish the people arbitrarily. It is only limited for using violence or betrayal of the basic organization of the country, such as the system of government, constitutionalism, etc., is the crime of Offenses against the Internal Security of the State and does not restrict or conclude the peaceful expression of opinions. Is there still a need to regulate the Offenses against the Internal Security of the State? What is the policy choice? This article will examine its historical connotation, and observe the changes in it, the position of cross-strait relations, and will propose the path and development trend of the stage of thinking."