023年刑事實體法發展回顧

Annual Review of Substantive Criminal Law: Developments in 2023

本文概覽2023年與刑事實體法相關之立法變動與實務見解，並從中揀取重要議題進行評述。一如既往，2023年之刑事立法變動，反映出當前之社會議題，包含：性影像之產製與流通、深度偽造技術之問世。此等社會議題，促使刑法增訂妨害性隱私與不實性影像罪章，並加重處罰以深度偽造技術影音為詐欺手段。實務見解方面，本年度憲法法庭分別針對違反公開收購罪以及妨害投票結果正確罪，進行刑罰明確性之審查。我國釋憲實務雖然對於刑罰明確性之審查，已發展出一套穩定架構，然而此等架構仍有若干點值得探討，針對系爭規範之具體審查，亦有反思之餘地。職是，本文擬藉由兩則判決，再探刑罰明確性之原則，試圖在立法授權行政制定細部規範（公開收購）以及立法後由司法解釋明確化（虛遷戶籍）兩種情形，釐清刑事立法之最低要求。

This article analyzes significant legislative amendments and judicial decisions that impacted substantive criminal law in 2023, focusing on key developments. As anticipated, the year’s criminal law reforms addressed contemporary societal challenges, including the non-consensual creation and distribution of sexual images and the emergence of deepfake technology. In response, new criminal prohibitions against the production and dissemination of such images were enacted, and penalties for the fraudulent use of deepfakes were increased.
This article contends that criminalizing offenses related to sexual images is essential to protecting the privacy associated with sexual activities. Such images can expose victims to increased risks of harm, including physical attacks and severe emotional distress caused by unwanted public association with sexual conduct. Furthermore, while deepfakes can be used to perpetrate fraud, their inclusion as an aggravating factor for sentencing should primarily be justified by the potential to reduce costs rather than by perceived increases in the risk of victimization.
Turning to judicial developments, the Constitutional Court adjudicated on the constitutionality of offenses related to mandatory tender offers and electoral fraud. Although the Court has established a consistent framework for evaluating vagueness challenges, the precise contours and application of this doctrine require further examination. Accordingly, this article re-examines the void-for-vagueness doctrine through two illustrative cases, aiming to clarify the minimum requirements for criminal legislation in instances of legislative delegation to the executive (mandatory tender offers) and judicial interpretation (fictitious residency for electoral purposes).
In essence, this article emphasizes the potential opportunity costs arising from the unintended deterrence of lawful activities. Consequently, the standard of knowability should consider not only those subject to criminal liability but also those whose behavior may be affected and thus (mistakenly) deterred. By adopting an efficiency-based approach to vagueness, unconstitutional statutes should be identified as those incurring higher opportunity costs from deterring lawful conduct than the benefits of preventing unlawful behavior. Criminal legislation should be constitutionally sound prior to delegation when it properly demarcates the scope of targeted behavior and should not be rectified through post-legislative judicial interpretation.