論仇恨性言論之刑法管制

Abstract

概括而言，仇恨性言論是一種針對種族、性別、宗教等共同特徵激起仇恨的言論。在我國現行刑法下，因妨害名譽罪章係保護個人法益，故散布指向群體的仇恨性言論為不可罰的行為。惟隨著族群平等和人權價值的提倡，仇恨性言論入刑化的呼聲日漸上升。本文即在探究此類言論在臺灣以刑法抗制的正當性為何，並提供立法論上的建議。 就仇恨性言論的概念，美國法上的仇恨性言論，主要圍繞著種族仇恨和種族歧視的議題發展；而德國法上則是為了回應納粹時代的遺毒，以及近年來難民及邊界開放問題所衍生德國人與少數族群的摩擦。現有文獻對仇恨性言論仍不存在一個統一的定義，而多僅以列舉性別、族群等共同特徵的方式描述仇恨性言論的輪廓。本文主張，考量國家對人民的保護義務，仇恨性言論的概念應為：對於共同體中特定群體之特徵加以攻擊、表達仇恨，進而貶抑該群體或群體成員平等地位的言論。 在比較刑法上，德國法對仇恨性言論的規範主要見於刑法第86條、第86條a及第130條，保護法益包括公共安寧、人性尊嚴與民族相互理解思想法益等，聯邦憲法法院亦在數則裁判中宣示此類規範不違憲之意旨；美國法在Brandenburg一案確立「明顯而立即危險原則」作為言論自由之界線後，各州刑法及最高法院的裁判也圍繞著此一原則發展，認為在言論所帶來的仇恨導致迫在眉睫的危險時，國家方能以刑罰回應。 最後，本文討論在臺灣仇恨性言論的刑事管制措施是否能被證立，其主要涉及言論自由與人格保障的緊張關係。本文認為，依據我國憲法及兩公約施行法相關規定，國家管制仇恨性言論有憲法上依據。惟就刑事法上，本文主張，處罰仇恨性言論的規範，其背後並無適格的法益，仇恨性言論本身也不是一個社會性損害高的行為，而有刑事政策上的預防需求。因此，國家以刑法處罰仇恨性言論並無正當性，諸如族群平等法草案、二二八事件處理及賠償條例第六條之一修正草案中相關的刑罰規定，均應予以揚棄。

Generally speaking, hate speech is a kind of speech that incites hatred towards race, sex, religion, or other specific features. As hate speech aims at groups instead of individuals, it is not punishable under the Taiwanese Criminal Code because the Offenses Against Reputation and Credit only protect personal legal goods. However, as the concepts of ethnic equality and human rights develop, whether hate speech should be criminalized has become an urgent issue in Taiwan. Thus, this article aims to analyze whether such regulations can be justified under the criminal perspective and provide legislative suggestions. Under American Law, the development of hate speech mainly surrounds the issues of racial hatred and discrimination. Hate speech is regulated under German law in response to the Nazi Epoch and conflicts arising nowadays between Germans and the refugees and minorities due to the open borders. According to existing literature, there is no united definition of hate speech. Instead, hate speech is only described by enumerating characteristics, such as sex, race, etc. This article suggests that, in consideration of the protective obligation of the state, hate speech should be defined as speech that attacks or expresses hatred against specific groups in the community and derogates their status of equality as a result. In terms of comparative law, such regulation can be found in the German Criminal Code(StGB) Paragraph 86, 86a, and 130. The legal goods include public peace, human dignity, and mutual understanding between ethnic groups. The German Federal Constitutional Court has also declared their constitutionality. As for the United States, after the US Supreme Court established 'the Clear and Present Danger Test', which suggests that not until the hatred brought by the speech causes clear and present danger is the penalty by the state justified, in the Brandenburg case, the decisions of the Court and the regulations of state criminal codes have developed around this principle. Lastly, this article discusses if the criminalization of hate speech could be justified in Taiwan, which mainly concerns the tension between freedom of speech and protection of personality rights. This article suggests that according to the Taiwanese Constitution and the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, there is a constitutional basis for the state's regulation. However, under the criminal perspective, not only does such penalties against hate speech lack standing legal goods, but hate speech is also not highly damaging enough and thus does not call for the need of prevention under criminal policy. As a result, the criminalization of hate speech by the state could not be justified. Therefore, the penalties in the draft of the Ethnic Equality Act and the draft amendment to The February 28 Incident Disposition and Compensation Act Article 6-1 must be discarded.