| Abstract: | 近來海洋因藍色國土概念及經濟效益而日趨重要，各國漸將關注重心由陸地轉至海洋，而破壞海洋秩序的情事如海盜行為，亦對各國海洋秩序及航行安全產生莫大的威脅。海盜存於人類歷史已久，其非一開始即為犯罪，於古希臘、羅馬時代僅為生活方式不同之族群，於大航海時期，海盜甚至與各國政府合作，藉由私掠狀進行合法掠奪，惟後隨著國家勢力強大及海盜行為不受控制，各國群起禁止後幾乎消弭，直至二十世紀末，海盜復於某些內政不彰、經濟落後國家沿海出現，威脅著國際利益，少數國家甚至派兵護航該國船舶。現代海盜以組織、企業化的態樣出現，而我國為海洋國家，國際貿易、漁業為國內經濟命脈，對於海上秩序的保護，我國刑法設有海盜罪，實務卻鮮少出現案例，其原因出於海盜罪構成要件缺漏及實務見解不盡合宜，是以海盜罪相關構成要件應有檢視之必要。海盜行為係萬國公罪，二十世紀前多以習慣國際法處理之，而於國際聯盟成立後，即著手於研議制止海盜草案，後有哈佛海盜行為研究草案、日內瓦公海公約及一九八二年聯合國海洋法公約等。另對於新型態的海盜，國際間於一九八八年擬定制止危害海上航行安全之非法行為公約，以補足現代海盜行為規範之實需。世界重要國家如美、英、新加坡及日本等均對海盜行為著有規範，亦均參考國際規範，修訂內國法，使其海盜規範得發生實際作用，避免與其他國家管轄權扞挌。我國於一九二八年設有海盜罪，並賡續沿革，法務部曾於二○○三年、二○○四年各提出刑法部分條文修正草案，雖二○○六年曾完成修法，然幅度不大，重要爭議未予解決。而我國海盜罪最大問題在於構成要件要素空洞、法益保護層次過低，致使一經著手即為既遂，且衍生雖為重罪，但缺乏預備犯及未遂犯等處罰規定；另與國際規範格格不入，亦造成與公共危險罪部分條文解釋之困難。本文建議我國刑法修正方向朝與國際法如「私人目的」及「另一船機」等重要原則一致，以與國際法規範接軌。
A concern of nations has gradually transferred from land to ocean recently due to the development of international trade and the maritime resource. In opposite, some circumstances such as piracy disturb the maritime order and have threatened the benefits of the nations as well.Piracy has existed in human history for centuries. However, it was not a crime in the first place, but a different lifestyle in the period of Greek and Roman. During the period of Great Navigation, the pirate even cooperated with nations. With the right from letter of Margue issued by the authorities, the pirate conducted legal robberies. Nevertheless, because of the increasing strength of nations and the unrestrained piracy, nations had shifted to prohibit and struck piracy, therefore piracy was nearly vanished. In 20th century, piracy has resumed in some undeveloped nations, and is more organized than ever, deeply threatening the international benefits. As a result, some nations even send troops for pirates tackling. Piracy is “Hostis humani generis”(enemy of mankind), before 20th century it was ruled by Customary international law, and after the establishment of the league of Nations, the league began to conduct the Draft Provision for the Suppression of Piracy, then Harvard University conducted the Research in International Law Draft Convention on Piracy as well. After that, the United Nations conducted The Geneva Convention on the High Sea. And most importantly, in 1982, United Nations conducted the United Nations Convention on the Law of the Sea. In order to tackle the modern pirates, in 1988 the treaty” The 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation” has been signed to tackle the new type of piratesSome nations such as the United States, Japan and Singapore has legislated the Offences of Piracy, and also refer to international law or treaty to modify their interior laws in regarding of reducing the dispute over jurisdiction.And Taiwan legislated the Offences of Piracy at the year of 1928 , and the Ministry of Justice conducted Criminal Code revised Draft in 2003 and 2004 separately, and revised the code in 2006, however, most of the crucial disputes of the Offences of Piracy have not been revised. The most crucial defect is the constitutive element. It causes the insufficient protection of the legal interest and the dilemma between the offences of piracy and other offences. Even the Offences of Piracy is a severe crime, but lack of the Attempt and preparatory crime.This article provides the advice that the revise of the Offences of Piracy may refer the main principle of international law or treaty such as ” in private end” and “against another ship or aircraft” as to keep coherently with international law. |
