論對長（上）官施強暴罪情狀可憫恕之減刑

Research and Analysis on the Contentious Issues of Criminal Code of the Armed Forces Article 49

軍紀為軍隊之命脈，軍隊必須有嚴肅之軍紀，然後部隊之團結才得以鞏固， 戰力之持久才得以確保。軍紀之維護最直接的表現在於階職服從，階職性的權威涵蓋了軍人的生活、訓練和勤務，使軍人活動時序規律化、方式團隊化以及生理、心理超越極限的磨練。為維護全控組織前揭核心價值之軍事法益，對於階職權威之破壞者，各國軍事刑法皆明文處罰，我國陸海空軍刑法第49 條亦明定「對長（上）官暴行脅迫罪」之重罰。爾來有官兵因男女朋友關係之口角爭執而衍生傷害行為，因彼此階級不同，經法院以對上官施強暴罪處斷，此對軍事法益侵害甚微，卻以該重法相繩，是否有悖刑法謙抑原則及罪刑均衡原則， 殊值討論。再者，該法第51 條特別規定，涉犯前開之罪而情狀可憫恕者，減輕其刑；然法院對於肇因長官不當管教，下屬對其施強暴之犯行，雖認有「情狀可憫恕」，惟竟捨該法之適用，而以刑法第59 條減輕其刑，此判決是否允當？ 本文透過文獻探討，研析前開議題，同時評論相關實務判決，再透過外國法例之簡介，對於無關職務執行之暴行，且無害軍事法益或甚輕微之危害者，提出應軍民同刑，回歸刑法規範之修法建議。

Military discipline is the most important part of the military. The military must have serious military discipline to ensure the maintenance of combat effectiveness and achieve victory. The most direct expression of maintaining military discipline is obedience to position and rank. The authority produced by rank and position is present in the lives, training, and duties of soldiers, which standardizes and teamifies their activities and pushes them to surpass physical and psychological limits. To uphold the core value of the position of rank and position in military legal interests, individuals who undermine the dignity of rank and position are punished by military criminal laws in various countries. Article 49 of Criminal Code of the Armed Forces also explicitly states “Assault of Higher Ranking Officers” . Recently, there have been frequent cases of injuries caused by disputes between soldiers with intimate relationships due to private matters. Because of the difference in rank between the parties, the courts have sentenced the offense as violence against a superior officer. This judgment reflects the necessity of maintaining military discipline, but it also raises questions about whether it violates the principle of restraint in criminal law. Furthermore, Article 51 of Criminal Code of the Armed Forces provides for a reduction in punishment for offenses that are extenuating circumstances. However, in cases where improper discipline by a superior officer causes subordinates to commit violence against them, although there may be “extenuating circumstances” , the court chooses to apply Article 59 of the Criminal Law to reduce the sentence rather than Article 51 of Criminal Code of the Armed Forces. This raises questions about the appropriateness of this judgment. This article discusses these issues through literature analysis, examines related practical judgments, and proposes suggestions for the revision of Criminal Code of the Armed Forces by introducing foreign legal precedents.