陸海空軍刑法第24條修正案之法制評析及刑罰理念轉向

A Legal Analysis of the Amendment to Article 24 of the Criminal Code of the Armed Forces and the Shift in Penal Philosophy

近年來，違反國家安全之忠誠義務事件頻仍，促使立法者檢討陸海空軍刑法第24條投（降）敵相關規範之適足性。本次修正草案除加重降敵罪之刑度外，尚擴大預備犯及陰謀犯之處罰範圍，並增訂「對敵人為效忠表示罪」，顯示立法重心已由事後制裁，轉向對軍人忠誠動搖風險之前端預防；此一趨勢，與現行國家安全法及反滲透法針對高風險行為提前介入之規範邏輯相互呼應，然僅以嚴刑峻罰作為制裁主要手段，是否足以有效維護忠誠義務，仍有疑問，故本文主張以制裁性與預防性之「剝奪／喪失特質」措施，作為違反忠誠義務之核心回應。是以，本文認為，未來我國軍事刑法或許得不以制式加重處罰為唯一選擇，亦可思考引入具身分剝奪性質之從刑或保安處分，作為忠誠義務維護之制度性補充，以提升國安法制之整體協調性及實效性。

In recent years, frequent incidents involving breaches of the duty of loyalty to national security have prompted legislators to review whether Article 24 of the Criminal Code of the Armed Forces, which governs the crimes of defection to the enemy and surrender to the enemy, adequately meets practical needs. The proposed amendment not only increases the penalties for surrender to the enemy but also expands criminal liability to include preparatory and conspiratorial acts, while introducing a new offense of“expressing allegiance to the enemy.”This shift indicates that the legislative focus has moved from ex post punishment toward ex ante prevention of risks associated with the erosion of military personnel’s loyalty. This trend corresponds with the regulatory logic of the current National Security Act and Anti-Infiltration Act, both of which emphasize early intervention in high-risk conduct. Nevertheless, it remains questionable whether reliance on severe punitive sanctions alone is sufficient to effectively uphold the duty of loyalty. Accordingly, this article argues that sanctions based on punitive and preventive measures involving the“deprivation or loss of essential qualifications”should constitute the core response to violations of the duty of loyalty. This paper further suggests that future military criminal law need not regard rigidly increasing penalties as its sole option. It may also consider introducing accessory penalties involving deprivation of status, or rehabilitative measures, as institutional supplements for safeguarding the duty of loyalty, thereby enhancing the overall coherence and effectiveness of the national security legal framework.