我國器物毀損罪之反思與重構──以「足生損害」要素為契機

The Reflection and Reconstruction of Crime of Property Damage in R.O.C Criminal Code: At A Turning Point of the Constitutive Element“Being Adequate to Render Injury to the Public or Another”

我國普通毀損罪因為存有「足以生損害於公眾或他人」此一構成要件要素，不僅令人對於本罪產生罪質定性之疑問，也叢生與各要素如「毀棄」、「損壞」、「致令不堪用」之間的扞格及解釋爭議。為恪守本罪於刑法上之實害犯定性及基本原理，遂有要求於立法論刪除該要件之呼聲。但是，若能透過刑法釋義學之操作即能解決要件間之衝突與應付現實之適用難題，而非輕易訴諸立法論以謀出路，不僅能堅守司法者之分際，尚可避免淪於窠臼之譏。本文即藉此機會思考已有民事處理機制下，單純毀損他人之物的場合是否尚存刑罰介入之必要性，利用探究「足生損害要素」為契機，探究本罪保護法益之內涵，並藉由危險犯與實害犯間個人法益侵害構造差異之觀察與比較，重新檢視普通毀損罪之整體結構，據此提出之本文結論，希冀激發學界之思考外，並可供實務界參考。

The existence of the constitutive element of“being adequate to render injury to the public or another”from article 354 in Taiwan has not only raised questions about the characterization of the crime but also created controversies over the contradiction and interpretation of the elements such as“abandon,”“destroy,”and“renders useless”. To insist on the basic principles of actual damage crime in criminal law, there are appeals for the deletion of this element (which causes injury to the public or another) through legislative procedures. However, rather than intend to find a way to amend or delete the constitutive element via legislative procedures, we should moreover follow the criterion mentioned below: if the conflict between the constitutive elements can be resolved through the operation of legal dogmatics in criminal law, it can deal with the problems of legal application in reality as well at the same time. Therefore, the method mentioned above, not only legal professionals can scrupulously abide by their duties but also avoid the criticism of falling into old ruts. We have an opportunity to consider whether there is still necessary for penal intervention in the case of simple damage to another person's property under the existing order in civil law. We should take the constitutive element of“being adequate to render injury to the public or another”as an opportunity to reflect on the connotation of the legal interest of this crime and the differences under the structure of invading individual legal interests between dangerous crime and actual damage crime by re-examining the overall structure in the crime of property damage. At the end, this article suggests the conclusion can be used to stimulate the thinking of the academic community as well as serve as a reference for the practical community.