論選舉不實訊息的刑事規制：以公共性原則之保護為中心

On Criminalization of Disinformation in Campaign: Focusing on The Protection of The Principle of Publicity

本文目的在證成選舉不實訊息的刑事處罰的正當性。研究客體即是《公職人員選舉罷免法》第104條與《總統副總統選舉罷免法》第90條（下稱系爭二條文）。
首先，本文批評在實務見解下名譽權保護的矛盾之處，並藉由對妨害投票罪章的體系性研究，將系爭二條文定位為國民主權之刑事保護。公共性原則旨在確保政治共同體中的每個成員都有參與理性政治論辯的機會與權利，此等政治論辯即是國民主權之體現。而假訊息將使相信它的公民，因抱持與他人不同的事實信念，如同「彼此處於不同世界」，而無法與其他公民共同開啟此政治辯論。故公共性原則若與民主選舉有直接關聯性，即具備刑法保護法益適格。
再者，本文基於法益解釋原則，就「散布不實訊息或謠言」之構成要件行為進行解釋。首先，本文分別從質與量方面定義散布行為；再者，本文區別事實陳述與價值論辯之差異；最後，本文主張事實陳述內容必須具備政治上重要性。
就行為結果而言，本文認為系爭二條文非實害犯，而屬潛在危險犯，其規範目的在於規制「具體危險性狀態」。在此狀態的具體危險性，即是在該等受不實訊息觸及的公民群體中，可以預測在迫近的未來將產生奠基在不實訊息或謠言所涉及的事實主題上的公共政治辯論，且該等不實訊息不僅具備使人相信且引人注目的外觀，甚且超出個別公民或相關機構查證能力範圍，且難以認為在選舉開始前的合理期間內將產生有效的澄清言論。

The purpose of this article is to justify the criminal punishment of disinformation concerning democratic election. The object of my study is Article 104 of the Election and Recall of Public Officials Act and Article 90 of the Law on the Election and Recall of the President and Vice President Act (“the two articles”).
First, this thesis criticizes the contradiction of the opinion of the supreme court, which focuses on the protection of reputation. Then through a systematic study of the crime of interfering with voting in ROC Criminal Code, I consider the two articles as the protection of popular sovereignty through the protection of principle of publicity, which is the constitutive element of democratic election. The principle of publicity aims to ensure that every member of the political community has the opportunity and right to participate in a rational political debate, which is the embodiment of popular sovereignty. Disinformation, on the other hand, will prevent citizens who believe in it from enter together into such a debate, as if they were in different worlds. Therefore, if the principle of publicity is directly related to democratic elections, it should deem as a legal interest of the criminal law.
Furthermore, this thesis explains the "spreading false information or rumors" based on the principle of legal interpretation according to legal interest. First, the act of dissemination is defined in terms of its qualitative and quantitative aspects. Second, the differences between a statement of fact and one of value are distinguished. Third, it is claimed that the content of a statement of fact must be politically important to be subsumed under these two articles.
This article argues that the two articles are crimes constituted of potential endangerment, and their common normative purpose is to regulate "concretely dangerous states". The concrete danger of a state of affair concerning campaign disinformation is that among such groups of citizens touched by disinformation, it can be predicted that in the near future there will be a public political debate based on the factual subject matter of the disinformation, and such disinformation not only has a credible and compelling appearance, but is even beyond the verification capacity of individual citizens or relevant institutions, and it can’t be prognosed that effective counterspeech will be generated within a reasonable period of time before the start of the election.