親屬間長照殺人立法之罰與不罰間之矛盾

The contradiction between ''punishment'' and ''non-punishment'' in the legislation of long-term care homicide between relatives

邇來社會上頻傳家人不堪長期照顧，動手殺害至親的悲歌，在兼顧法理情，平衡刑罰嚴厲性前提下，法規業管機關法務部提出三種可能的修法方向，分別為放寬緩刑、緩起訴條件及另訂長照殺人罪但處以較輕之刑罰。但無論何種方案，「罰」與「不罰」之間都充滿了矛盾，即生命法益絕對保障的「矛」與刑法謙抑性最高思想的「盾」產生了「要寬不行、要嚴不能」之糾結，同時也造成寬嚴並進刑事政策分別在刑事立法、刑事司法及刑事執行政策上進退維谷之窘境，透由正反立論方式及國外立法例的檢視，思辨刑法有無為此修正殺人罪章之可能性及必要性；末以，本文提出長照殺人採立法處罰的方式絕非最佳模式，徒治標未治本耳，「長照悲歌」也是「社會悲歌」，宜從社會福利政策著手改善，並具體建議喘息服務程序的簡化及換手的替代銜接、喚起生命自主權法意識的思考、透由公私協力節約成本，並重視以「社區」為單位的解決模式及藉由整合跨部會資源，呼應最好的社會政策就是最好的刑事政策，建構良善之社會網絡。

Recently, there have been frequent occurrences in society of family members being unable to take care of them for a long time and killing their loved ones with their own hands. Under the premise of balancing the severity of penalties, the Ministry of Justice proposes three possible directions for law revision. It proposes to relax the conditions of probation and make a ruling to render a deferred prosecution by setting up a period, and separately stipulates the crime of homicide under long-term care but can be punished with a lighter punishment. But no matter what the plan is, there are contradictions between ''punishment'' and ''non-punishment''. That is to say: the ''spear'' of the absolute protection of life legal interests and the ''shield'' of the highest thought of the decline-restraint principle of criminal law have produced an entanglement of '' can't be lenient, can't be strict ''. At the same time, it also creates a dilemma for tough and soft criminal policies in terms of criminal legislation, criminal justice and criminal enforcement. This article considers the possibility and necessity of amending the crime of homicide in the criminal law through positive and negative arguments and reference from foreign legislation. This paper believes that the legislative punishment of long-term care homicide is by no means the best model, and it can only treat the symptoms but not the root cause. Because ''the elegy for long-term care'' is also ''the elegy for social policy issues.'' We should improve from the social welfare policy. This study also specifically suggests that the procedure of respite care should be simplified and the alternative connection method should be convenient. At the same time, we should also take this opportunity to arouse the legal awareness of life autonomy, and save social costs through public-private cooperation, and use the ''community'' as the unit to solve the problem and by integrating cross-departmental resources, echoing that the best social policy is the best criminal policy and build a good social network.