銀行法特別背信罪之職務與損害──評最高法院113年度台上字第216號刑事判決

The Scope of Official Duty and Damage in the Offense of Breach of Trust Under the Banking Act: A Commentary on Supreme Court Criminal Judgment No. 216 of 2024 (Tai-Shang)

財經法規中，對於違背職務造成本人損害之行為設有較普通背信罪加重處罰之規定，概稱為特殊背信罪。一般對於特殊背信罪之解釋，多從刑法普通背信罪出發。然而，特殊背信罪之刑度遠較普通背信罪為重，是否當然能作相同解釋，不無疑問。本文藉由最高法院113年度台上字第216號刑事判決為楔子，透過本則判決之論理，反思既有之解釋模式。本文提出，特殊背信罪之保護法益有別於普通背信罪所保護之本人財產利益，因此兩罪縱使具有相同之文字架構，仍應本於保護法益而區別解釋。準此，職務不同於任務，應限於各單行法規及其授權制定之命令或主管機關發布之函釋與銀行內部規範對於特定職位所課予之義務；財產損害則應限於對於金融市場可能造成擾動之財產狀態不利變動，進而不應寬泛將所有應增加而未增加之利益認為損害。

In financial and economic regulatory law, acts that cause damage to the principal by breaching one’s official duties are subject to aggravated punishment compared to the ordinary offense of breach of trust; such offenses are collectively referred to as special breach of trust offenses. Conventional interpretations of special breach of trust offenses are generally derived from the framework of the ordinary breach of trust offense under the Criminal Code of the Republic of China. However, given that the statutory penalties for special breach of trust offenses are significantly more severe, it is open to question whether they should automatically be interpreted in the same manner.
Using Supreme Court Criminal Judgment No. 216 of 2024 (Tai- Shang) as a starting point, this article reexamines the prevailing interpretive approach through an analysis of the Court’s reasoning. It argues that the legally protected good of special breach of trust offenses differ from the principal’s property interests protected by the ordinary breach of trust offense. Accordingly, even where the two offenses share identical statutory language, they should be interpreted distinctly in light of their respective legally protected good.
On this basis,“official duties”should be distinguished from their counterpart in the ordinary breach of trust and confined to obligations imposed on specific positions by individual statutes and regulations, as well as by authorized administrative orders, interpretive letters issued by competent bank-supervision authorities, or internal banking rules. Likewise,“property damage”should be limited to adverse changes in financial conditions that are capable of disrupting the financial market, and should not be broadly construed to include all benefits that ought to have accrued but did not.