違反效忠國家職責罪之立法政策與困境

Legislative Policy and Challenges of the Offense of Breaching the Duty of Loyalty to the State

中國大陸近來對臺灣文攻武嚇，機艦頻繁擾臺，2024年初更片面宣布取消M503航線自北向南飛行偏置，危及臺海飛安，共艦不斷侵擾24浬鄰接區，不僅在臺灣海峽演訓常態化，更圖謀推動「臺灣海峽內海化」，國臺辦等部門多次公開表示，不存在所謂「海峽中線」，金廈海域不存在禁止或限制水域，中共海警於2024年2月18日更宣布，將在金廈海域展開「常態化」執法巡查行動；值此威脅嚴峻時刻，前陸軍上校向德恩被中國大陸吸收為共諜，穿著軍服簽署「投降誓約書」，並收「內應費」，因當下「陸海空軍刑法」並無向敵人表態效忠相關罰則，向員最終經最高法院依貪污收賄罪判處7年6月徒刑定讞。但對於國人而言，用貪污罪處刑的結果顯然難以接受，認為是處罰漏洞，必須填補起來，為明確充足的規範。本文將從立法論及解釋論上進行剖析，宣示效忠這個行為，在刑法釋義學上，能否透過釋義方式便可掌握類似案例？是否真需要將這種非屬典型投（利）敵行為之「對敵人效忠表示」納入投敵罪處罰？自然有必要就其刑罰處罰之合理性進行探討，並就其處罰困境及立法出路加以探析。

Mainland China's recent cognitive and military intimidation against Taiwan has intensified, with frequent incursions by aircraft and vessels. In early 2024, China unilaterally announced the cancellation of the north-to-south flight deviation on the M503 route, endangering aviation safety in the Taiwan Strait. Chinese warships repeatedly intrude into Taiwan’s 24-nautical-mile contiguous zone, normalizing military drills in the strait while attempting to push the narrative that the Taiwan Strait is China's“internal waters”. The Taiwan Affairs Office and other Chinese authorities have repeatedly stated that the so-called“median line of the Taiwan Strait”does not exist, and that the waters near Kinmen and Xiamen are not restricted or prohibited areas. Furthermore, on February 18, 2024, China’s Coast Guard announced that it would conduct“regular law enforcement patrols”in these waters.
Amidst these severe threats, former Taiwan Army Colonel Hsiang Te-En was recruited as a spy by China. He even wore a military uniform while signing a“surrender pledge”and received an“internal support fee”from China. However, at the time, Taiwan’s“Criminal Code of the Armed Forces”had no specific provisions penalizing declarations of allegiance to an enemy. Consequently, Hsiang was ultimately sentenced to seven years and six months in prison by the Supreme Court under corruption and bribery charges—a verdict that was difficult for the public to accept, as it exposed a legal loophole that must be addressed to establish clear and comprehensive regulations.
This article will analyze the issue from both legislative and interpretative perspectives. In terms of criminal law interpretation, can similar cases be addressed through legal interpretation alone? Or is it truly necessary to classify such atypical acts of treason—namely, declarations of allegiance to an enemy—under the crime of treason? Thus, the rationality of criminal punishment for such conduct must be thoroughly examined, and analyze its penal dilemma and legislative solution.