論我國侮辱國旗罪之刑罰正當基礎——兼論德國刑法中「防衛性民主」相關觀點之啟示

The Penal Justification for Taiwan’s Offense of Insulting the National Flag: Insights from Defensive Democracy in German Criminal Law

本研究以刑法第160條第1項「侮辱國旗罪」為核心，探討其法益從「國家威嚴」到近期「憲政體制」的轉變，並檢驗新興「憲政體制說」是否足以支持本罪之存續。本文指出，隨民主制度深化，「國家威嚴」已不符憲法法院近期見解；然若以「憲政體制」與「防衛性民主」作為依據，則需從刑法體系角度進一步審查其手段適當性。
觀察我國刑法體系，真正以「憲政體制」為保護客體者，僅限於高度危及憲政的「非法變更國憲」及針對外部威脅的「反滲透法」，其均與侮辱國旗屬輕度、內部反民主言論有所落差，而無法根據前例支持其合憲性。再進一步比較我國與德國刑法可見，如僅制裁侮辱國旗，卻未如同德國同時規範宣傳反民主、詆毀憲政等更具實質危害的言論，也無法形成完整之憲政體制保護。本文據此提出建議，「侮辱國旗罪」在現行民主憲政架構下，不論採何種法益概念之詮釋，都已難以維持刑法上的存在必要，其規定宜予刪除。

This article centers on Article 160(1) of the Taiwanese Criminal Code—the offense of insulting the national flag—and examines the doctrinal shift in its protected legal interest from the traditional notion of“dignity of state”to the more recent emphasis on safeguarding the“constitutional system.”The study further evaluates whether this emerging constitutional-system approach provides a legitimate foundation for retaining the offense within a democratic legal framework.
With Taiwan’s ongoing democratization, the concept of dignity of state—an abstract and highly discretionary interest—has increasingly diverged from the Constitutional Court’s recent jurisprudence, which rejects dignity-based justifications for criminal punishment. If the offense is instead grounded in the protection of the constitutional order or the theory of defensive democracy, its legitimacy must be scrutinized through the lens of Taiwan’s broader criminal-law structure and the proportionality of the penal measure.
An examination of Taiwan’s criminal-law system reveals that provisions expressly protecting the constitutional order are limited to contexts involving grave threats: the offense of violently altering the Constitution and the Anti-Infiltration Act, which targets external interference by foreign hostile forces. As such, Article 160(1), which concerns a relatively minor form of internally generated symbolic expression represented by flag insult, cannot derive constitutional legitimacy from existing precedents, since it addresses a fundamentally different and considerably less harmful category of conduct. If the flag-insult offense were reinterpreted as a measure against internal anti-democratic expression, it would become the only criminal provision in Taiwanese law directed specifically at such speech, thereby lacking systematic consistency and doctrinal support.
A comparative perspective on German criminal law further highlights the limitations of relying solely on the national-flag offense to protect the constitutional order. In Germany—where the theory of wehrhafte Demokratie (defensive democracy) has a more developed institutional basis—criminal provisions addressing attacks on the democratic order extend beyond symbolic acts to include the dissemination of anti-democratic propaganda, efforts to undermine constitutional institutions, and other forms of expression posing substantive threats. By contrast, criminalizing only the insult of the national flag while leaving unregulated other, more consequential forms of anti-democratic advocacy cannot constitute an effective or coherent protective framework for the constitutional system.
Based on these findings, this article argues that Article 160(1) lacks the normative and structural foundations necessary for its continued existence in Taiwan’s democratic constitutional system. Regardless of whether the protected interest is articulated as dignity of state or reframed as the preservation of the constitutional system, the offense fails to meet contemporary standards of constitutional proportionality and systematic coherence. Consequently, the offense of insulting the national flag should be abolished.