陸海空軍刑法逃亡罪之研究

A Study on the Crime of Fleeing under the Criminal Code of the Armed Forces

軍隊以作戰為主，軍人是參與戰鬥的主要執行者，為保衛國家安全，需要適度的兵力，因此，憲法規定人民有依法服兵役的義務。倘若軍人棄兵役義務於不顧，而有逃亡行為，將對軍隊和國家造成軍紀、戰力和安全上的多重損失和傷害，所以，各國都有刑罰規定。我國則有陸海空軍刑法第39條長期逃亡罪、第40條短期缺職罪及第41條攜械逃亡罪之規定。根據近10年之司法判決統計，逃亡案件占軍法案件大宗，其中高達97.3%以繳錢結案，且相關判決中有誤解法條文義之情況，影響軍人權益甚鉅，探究發生原因，通常是因為法官未諳陸海空軍刑法之立法目的或軍事特性。本文希望透過討論外國立法、我國法制演變、條文釋義和判決評析，並提出兼顧軍人權益和戰力的刑事政策及修法建議，以改正上述適用法條不當情形，同時避免2024年因回復1年義務役期可能使逃亡案件遽增，影響部隊軍紀、戰力及國家安全。

The military's primary focus is on combat, and soldiers are the main participants in these engagements. In order to safeguard national security, it is essential to maintain an appropriate level of military personnel. Consequently, the constitution establishes the obligation of citizens to serve in the military according to the law. If soldiers disregard their duty and engage in the crime of fleeing, it can result in significant losses and damages to both the military and the nation in terms of discipline, combat capability, and overall security. Therefore, countries have established penal provisions to address such actions. In our country, there are specific regulations related to the crime of fleeing, including Article 39 for long-term the crime of fleeing, Article 40 for short-term absence without leave, and Article 41 for armed desertion, as specified in the Criminal Code of the Armed Forces.
Based on judicial sentencing statistics from the past decade, the fleeing crime cases constitute a significant portion of military-related cases, with as high as 97.3% of cases being resolved through monetary settlements. Furthermore, there have been instances where the interpretation of legal provisions in related judgments has led to misunderstandings and substantial impacts on the rights of military personnel. Often, the underlying cause of such issues is the judges' lack of familiarity with the legislative objectives or military characteristics of the law. This article aims to discuss foreign legal precedents, the evolution of our domestic legal framework, the interpretation of legal provisions, and analysis of judgments. It also seeks to propose criminal policies and legislative recommendations that simultaneously safeguard the rights of military personnel and ensure combat effectiveness. By addressing the improper application of relevant legal provisions, this article aims to prevent a potential surge in the fleeing crime cases in 2024 due to the extension of service periods, which could have adverse effects on military discipline, combat capability, and national security.