論不當買賣票券行為之行政罰與刑罰

The Legitimacy of Administrative and Criminal Penalties for Improper Ticket Trading Practices

通稱之「黃牛」，或可理解為「經由官方管道取得票券後，自行加價販售，並從中牟利之業者」。文化創意產業發展法第10條之1與運動產業發展條例第24條之1修正後，已就藝文表演票券與運動賽事或活動票券之黃牛所從事不當販售與購買之行為分別設有行政罰與刑罰。不過兩部法規上路迄今，黃牛現象似未平息，警方亦有加強執法趨勢，故本文嘗試討論不當買賣票券行為之行政罰與刑罰之條文內容，以重新審視此舉是否真能有助於提升臺灣票券市場之公平性。對於販售行為處以行政罰，不但因兩部法規於立法步調上的先後與不一致而衍生處罰漏洞，亦不無處罰過重而悖於比例原則之疑慮。至於就購買行為處以刑罰，則除了保護法益不明、不具適格性外，更不具備足以提升至刑罰之可非難性，並違反罪刑相當原則。最後，本文認為，與其訴諸嚴刑峻法，若改就現存之會員制、實名制與抽選制綜合研擬出新制度，或許更得以使消費者更加公平地取得票券。

The so-called“ticket scalper”or“ticket reseller”refers to the individual who obtain tickets through official and resell them at a higher price for profit. Following amendments to Article 10-1 of Development of the Cultural and Creative Industries Act and Article 24-1 of Sports Industry Development Act, administrative and criminal penalties have been established for improper trading practices concerning tickets for cultural and creative activities and sports competition or activities. However, despite the implementation of these regulations, scalping activities persist, and the police force also has tendency to step up law enforcement efforts. Therefore, this article attempts to observe and analyze the content of administrative and criminal penalties for improper ticket trading to excavate whether such measures genuinely enhance fairness in Taiwan’s ticket trading market.
About administrative penalties, inconsistencies and sequencing issues in the legislative processes of the two acts could create enforcement loopholes and raise concerns about penalties being disproportionate, potentially breaching the principle of proportionality.
Regarding criminal penalties for buyers, the justification for legal interests remains unclear, and the suitability of such measures is questionable. Additionally, the degree of illegality does not yet reach the level of culpability required to warrant the imposition of criminal penalties, violating the principle of the proportionality between crime and punishment.
Rather than relying on severe penalties, a more effective approach might integrate existing systems, such as membership programs, name-based registration, and Random Selection Draw process. Such reforms could probably provide consumers with fairer access to tickets.