The Study in Eligible Penalty Bases of Criminal Offense of Cognate Sexual Intercourse

• Main Authors: Hsin-Yun Lu, 呂昕昀
• Other Authors: Jung-Chien Huang
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/88507647905555197311

碩士 === 國立臺灣大學 === 法律學研究所 === 102 === The different standards of examining the eligible penalty bases, would show various values—which one will tell the most appropriate answer to the eligible penalty bases? When we are on the road of finding the eligible penalty bases, we always hear this: “We can’t punish the action only offending morality.” But unfortunately, almost no one paid sometime to meditate that this sentence is true or false. The scholar also proposed that command often in the other statement: “Morality cannot be a kind of law benefit.” While these statements seems true, Taiwan (R.O.C.) Criminal Code Chapter 16-1 however is named “Offense against Morality”. Does it means all criminal offenses in the chapter 16-1 has no eligible penalty bases? Different from other sexual crime locating at the chapter 16 “Sexual Self-Determination Offense”, criminal offense of cognate sexual intercourse is the only article had put in the “Offense against Morality” chapter. What actually are the eligible penalty basis if morality cannot be the one? “Which standard could tell the most appropriate answer to the eligible penalty bases?” and “What are the eligible penalty basis of criminal offense of cognate sexual intercourse?” are the two major topics in this thesis. On topic of “Which standard could tell the most appropriate answer to the eligible penalty bases?”: To contrast between liberalism and communitarianism, the distinct priority among various values. Liberalism locate “Personal benefit” in the middle of the earth, while communitarianism promote the “Common Good”, which means the important value that everyone can share and cherish. In the thesis, based on communitarianism and by Ronald Dworkin’s “law as integrity” concept, is the standard will be used for solving the following topic. In concern that the top of constitution criterion, the eligible penalty basis shouldn’t contradict the spirits and values of constitution. Therefore, to solve the following topic, using rule of proportionality, and the communitarianism and Ronald Dworkin’s “law as integrity” will be used as the standard of benefits measurement. On topic of “What are the eligible penalty basis of criminal offense of cognate sexual intercourse?”: 1. Sexual Self-Determination: While there are others article in Chapter 16 of the Criminal Code, this article only could punish the criminal who has a consent about the sexual intercourse from the sexual mate. Accordingly, sexual self-determination can’t be the eligible penalty basis to this article. Furthermore, It is an injustice invasion to individual self-determination that the country setting the criminal offense of cognate sexual intercourse to forbidden people choosing the cognation as sexual mates. 2. Eugenics: Although eugenics can rise the healthy level of a country, it could be a serious discrimination toward those who born to be weak、illnesses or disable. The latter obviously contradict the value of constitution. In addition, the criminal punishment is scared who most-needed the eugenics strategy, thus it is not an appropriate way. 3. Marriage and Family: Everyone should have the right to follow their own mind to choose how to and with who have a marriage and family. The country law shouldn’t punish people only because their marriage or family is not “normal”. 4. Mental Health and the Development of Personality：After the cognate sexual intercourse, the involvers might show some side effect, like realistic fears of disclosure、loss of maternal Protection and attachment needs、Pseudomaturity…etc. But as the former said, everyone should show respect to each other, including the country. Additionally, the country should conduct the mission of constitution: make everyone “substantive equality” and be able to develop what they would like by true self-determination. Last but not least: “Should morality be an eligible penalty basis?” Thinking of the “Stigma” effect of penalty, we should have room to a person not need to worry about let anyone else down. That’s also the top respect to human dignity.