釋字第 669 號 (J.Y.Interpretation No. 669)
解釋公布日期:民國 98年12月25日
解釋爭點:槍砲條例第8條第1項關於空氣槍之處罰規定違憲?
解釋文:
槍砲彈藥刀械管制條例第八條第一項規定：「未經許可，製造、販賣或運輸鋼筆槍、瓦斯槍、麻醉槍、獵槍、空氣槍或第四條第一項第一款所定其他可發射金屬或子彈具有殺傷力之各式槍砲者，處無期徒刑或五年以上有期徒刑，併科新臺幣一千萬元以下罰金。」其中以未經許可製造、販賣、運輸具殺傷力之空氣槍為處罰要件部分，不論行為人犯罪情節之輕重，均以無期徒刑或五年以上有期徒刑之重度自由刑相繩，對違法情節輕微、顯可憫恕之個案，法院縱適用刑法第五十九條規定酌減其刑，最低刑度仍達二年六月以上之有期徒刑，無從具體考量行為人所應負責任之輕微，為易科罰金或緩刑之宣告，尚嫌情輕法重，致罪責與處罰不相對應。首揭規定有關空氣槍部分，對犯該罪而情節輕微者，未併為得減輕其刑或另為適當刑度之規定，對人民受憲法第八條保障人身自由權所為之限制，有違憲法第二十三條之比例原則，應自本解釋公布之日起至遲於一年屆滿時，失其效力。
理由書:
人民身體之自由應予保障，憲法第八條定有明文。鑑於限制人身自由之刑罰，嚴重限制人民之基本權利，係屬不得已之最後手段。立法機關如為保護合乎憲法價值之特定重要法益，並認施以刑罰有助於目的之達成，又別無其他相同有效達成目的而侵害較小之手段可資運用，雖得以刑罰規範限制人民身體之自由，惟刑罰對人身自由之限制與其所欲維護之法益，仍須合乎比例之關係，尤其法定刑度之高低應與行為所生之危害、行為人責任之輕重相符，始符合罪刑相當原則，而與憲法第二十三條比例原則無違（本院釋字第六四六號、第五五一號、第五四四號解釋參照）。
槍砲彈藥刀械管制條例第八條第一項規定：「未經許可，製造、販賣或運輸鋼筆槍、瓦斯槍、麻醉槍、獵槍、空氣槍或第四條第一項第一款所定其他可發射金屬或子彈具有殺傷力之各式槍砲者，處無期徒刑或五年以上有期徒刑，併科新臺幣一千萬元以下罰金。」係為防止暴力犯罪，以保障人民生命、身體、自由及財產等之安全，立法目的符合重要之憲法價值。其中關於空氣槍之規定部分（下稱系爭規定），由於空氣槍之取得、使用、改造較為便利，且具有物理上之危險性，容易成為犯罪之工具，是製造、運輸、販賣具有殺傷力空氣槍之行為，雖對一般民眾之生命、身體、自由及財產等法益尚未構成直接之侵害，但立法機關認前述行為已足造成高度危險，為保護上開重要法益，乃採取刑罰之一般預防功能予以管制，可認係有助於重要公益目的之達成。此外，因別無其他與上開刑罰規定相同有效，但侵害較小之替代手段可資採用，是該刑罰手段亦具有必要性。
惟系爭規定所禁止製造、運輸、販賣之客體相對廣泛，一部分殺傷力較低之空氣槍，亦在處罰範圍內。基於預防犯罪之考量，立法機關雖得以特別刑法設置較高之法定刑，但其對構成要件該當者，不論行為人犯罪情節之輕重，均以無期徒刑或五年以上有期徒刑之重度自由刑相繩，未能具體考量行為人違法行為之惡害程度，對違法情節輕微、顯可憫恕之個案，可能構成顯然過苛之處罰，而無從兼顧實質正義。按不具殺傷力且無危害安全之虞之空氣槍係合法而容易取得之休閒娛樂商品，而改造此類空氣槍，所需零件易於取得，亦無須高度之技術。倘人民僅出於休閒、娛樂等動機而改造合法之空氣槍，雖已達殺傷力標準，但若其殺傷力甚微，對他人生命、身體、自由、財產等法益之危險甚低，或有其他犯罪情節輕微情況，法院縱適用刑法第五十九條規定酌減其刑，最低刑度仍達二年六月以上之有期徒刑，無從具體考量行為人所應負責任之輕微，而為易科罰金或緩刑之宣告，尚嫌情輕法重，致罪責與處罰不相對應。系爭規定對犯該罪而情節輕微者，未併為得減輕其刑或另為適當刑度之規定，對人民受憲法第八條保障人身自由權所為之限制，有違憲法第二十三條之比例原則。
國家以法律限制人民自由權利者，法律規定所使用之概念，其意義依法條文義及立法目的，為受規範者所得預見，並可經由司法審查加以確認，即與法律明確性原則無違，迭經本院解釋在案。系爭規定所謂之殺傷力，依據一般人民日常生活與語言經驗，應能理解係指彈丸擊中人體可對皮膚造成穿透性傷害。而揆諸現行司法審判實務，亦係以其在最具威力之適當距離，以彈丸可穿入人體皮肉層之動能為槍械具殺傷力之基準（本院秘書長中華民國八十一年六月十一日秘台廳（二）字第０六九八五號函參照）。法院於具體個案中，並審酌專業鑑定機關對槍砲發射動能之鑑定報告，據以認定槍砲是否具有殺傷力。是系爭規定以是否具有殺傷力為構成要件，其意義為受規範者所得預見，亦得經司法審查予以確認，尚與法律明確性原則無違。
有關機關應自本解釋公布之日起一年內，依本解釋之意旨檢討修正槍砲彈藥刀械管制條例第八條第一項有關空氣槍之規定，以兼顧國家刑罰權之妥善運作及保障人民之人身自由，逾期未為修正者，該部分規定失其效力。
相關附件:
釋字第六六九號事實摘要
按陳某等四人為休閒娛樂之用購入空氣槍，所購槍枝有卡彈現象，乃自行換裝彈簧，嗣被查獲，因渠等改造後之空氣槍，經鑑定其發射動能單位面積均逾二十焦耳/平方公分，業屬實務認定之具殺傷力之空氣槍，是被告之行為被依槍砲彈藥刀械管制條例第八條第一項規定（以下簡稱系爭規定），予以起訴。
聲請人金門地方法院刑事庭於審理該案件時，對系爭規定有具體之違憲確信，乃裁定停止訴訟向本院聲請解釋憲法。
Issue:
Is the provision on the penalty against the acts of manufacturing, selling, trafficking air guns in Paragraph 1, Article 8 of Firearms, Knives and Other Weaponry Control Act constitutional?
Holding:
Article 8, Paragraph 1 of Firearms, Knives and Other Weaponry Control Act stipulates : “[Anyone who] manufactures, sells, traffics without permission pen guns, gas guns, anesthetic guns, hunting rifles, air-propelled guns or any gun or cannon provided by Article 4, Paragraph 1, Section of the present Act that can emit metals or bullets and are capable of causing personal injuries or death, is punishable with a life- imprisonment or no less than 5 years of imprisonment, and a fine no more than NTD 10,000,000.”
Following this statute, an issue of excessive punishment is arising as all the acts of unpermitted manufacturing, selling, or transporting air guns that are capable of causing personal injury can be subject to the penalty of no less than five years of imprisonment up to a life-imprisonment. Especially, in cases involving minor violations committed in forgivable situation, the minimum penalty imposed can still go as high as 2 and half years of imprisonment. The court is unable to appraise individually the corresponding responsibility the offenders should assume so as to render a sentence parole or order a substitution of fine, even though it applies Article 51 of Penal Code with a view to reducing the punishment. Such sentencing will accordingly create a disproportion between culpability and penalty. As far as the above-mentioned provision on air-propelled guns is concerned, the statute does not provide a combined sentence reduction nor other appropriate alternative sentences for those who commit minor violations. As a result, such restriction on the right of personal freedom, as safeguarded by Article 8 of the Constitution, is in violation of the principle of proportionality mandated by Article 23 of the Constitution and the provision in question shall be invalidated no later than one year since the issuance of this Interpretation.
Reasoning:
As mandated by Article 8 of the Constitution of the Republic of China, the people’s bodily freedom shall be protected. Given that criminal penalty on bodily freedom restricts the fundamental rights of the people, it shall only be exercised as the last resort when no alternative is available. To safeguard those fundamental legal interests in line with Constitutional values, a criminal penalty that restricts people’s freedom of person can be imposed by applying a law passed by the Legislation, if the imposition of penalty is helpful for attaining its goal in terms of public interest and if no other approaches which embrace similar validity and pose relatively minor violation to personal freedom can be relied on. However, there should exist a proportion between the restriction to the freedom of person and the legal interests to be defended. In particular, it must be proportionate between the codified realm of penalty, the hazard caused by the criminal offences, and the liability incurred upon the offenders, so as to be in accord with the principle of proportionality required by Article 23 of the Constitution. (See, J. Y. Interpretation No. 646, No. 551, as well as No. 554)
Article 8, Paragraph 1 of Firearms, Knives and Other Weaponry Control Act stipulates: “[Anyone who] manufactures, sells, traffics without permission pen guns, gas guns, anesthetic guns, hunting rifles, air-propelled guns or any gun or cannon provided by Article 4, Paragraph 1, Section of the present Act that can emit metals or bullets and are capable of causing personal injuries or death, is punishable with a life- imprisonment or no less than 5 years of imprisonment, and a fine no more than NTD 10,000,000.” It is enacted to prevent violent crimes and protect the safety of the lives, bodies, freedom and property of the people. Thus the legislative objective of this enactment is in conformity with the fundamental constitutional values.
Due to the physical hazards for causing injuries as well as its relatively easy access, use, and transfiguration, the air-propelled guns tend to be employed as criminal instruments. Hence, the acts of manufacturing, trafficking and selling the air guns that endanger life or body are so highly hazardous as to warrant the penalization legislation, taking into consideration its general prophylactic function. In this sense, the provision in question that punishes said acts is positive for helping accomplish important public interests. In addition, given that no other equally effective yet less intrusive alternatives are available, the penalty measure is not deemed unnecessary.
However, since the objects of the manufacturing, trafficking, or selling offenses stipulated by said provision are relatively in wide range, the acts involving certain air guns with lesser capacity of causing injuries will likewise be subject to punishment. From the perspective of crime prevention, while the legislature has an authority to impose higher statutory penalties by enacting special penal laws, the imposition of life imprisonment of at least 5 years imprisonment on those acts risks of constituting an excessively harsh penalty and in turn injuring the substantive justice the penal system is seeking, if the culpability can not be specifically evaluated in some individual cases involving minor offences which are committed in an obviously forgivable condition.
To be noted, an air gun which does not possess a capacity to causes injury is nothing more than an entertaining merchandise item that can be obtained easily in legal way. The transfiguration of such air guns takes no high technology, given the easy availability of their spare parts. If a person transfigures an air gun that was legally acquired for a purpose of amusement or entertainment, resulting a product to a general standard of endangering, the hazard to the legal interest on life, body, freedom or property of others are fairly low if the endangering capacity so attained is regarded as minor. In a case of a minor violation which is committed in particularly pitiful conditions, the minimum penalty on the offense can still amount to 2 and half years imprisonment, even if the trial courts applies Article 51 of Penal Code to lessen the punishment. In such event, no parole of sentence or substitution of fine is available for the offenders whose liability is relatively inconsiderable. Accordingly, an injustice of overly severe punishment and a disproportion between offence and penalty is created. From this view, the afore-mentioned provision is considered to violate the principle of proportionality provided by Article 23 of the Constitution of the Republic of China and is invalidated by the end of one year since the promulgation of this Interpretation.
A legal concept contained in a statute enacted by the State aiming at restraining people’s freedoms or rights is deemed to be not inconsistent with the principle of certainty of law, as long as it is foreseeable for the regulated and likely to be confirmed by means of judicial review. This position has been firmly assumed by several Interpretations by this Yuan. The concept of “endangering capacity” in provision in question should be interpreted as an emitted bullet can cause a penetrating injury to human skin when the body is stroke, based on a general understanding of daily-life verbal expression. According to current judicial practice, the adopted standard of “endangering capacity” for firearms means an emitted bullet bears an energy that can penetrate human skin and muscle layers within its most powerful distance. (Referred to Secretary General’s Letter Mi-Tai-Ting(2)No. 06985, June 11,1991 of this Yuan)
In finding out whether a firearm bears an endangering capacity, the trial courts will draw as in practice an evaluation reports from professional assessment agencies on the emission energy of the firearms in question. When the endangering capacity constitutes the core concept of the provision in question, which is foreseeable by the regulated people and likely to be reviewed by judicial process, the provision in question is consistent with the principle of legal interpretation certainty.
The governing agency is due to amend the provision on air gun in Paragraph 1, Article 8 of the Firearms, Knives and Other Weapons Control Act in accordance with this Interpretation within a year since the promulgation of this Interpretation, with a view to consoling the proper application of national penalty authority and the protection of people’s bodily liberty. If the anticipated amendment is not made in the given period as mandated above, the provision in question shall be invalid.
Translated by TSAI Chiou-ming, Public Prosecutor
Editor's Note :
Summary of Facts：X along with other three persons purchased an air gun for entertainment use. A bullet jamming happened with the gun later. Accordingly, X et al. engaged to replace the recoil spring to address the bullet jamming issue. After the transfiguration, the air gun was somehow found and seized by the police, which submitted the seized gun to the competent agency for a regular assessment. According to the assessment report, the transfigured air gun bears an emission force over 20 joule/per square centimeter and falls into the category of the air guns capable of causing injury and death. The police reported the case to the competent District Prosecutors Office. The four persons were then indicted and the case was referred to Kimen District Court for trial, applying Article 8, Paragraph 1 of Firearms, Knives and Other Weaponry Control Act. The trial court, Kimen District Court suspended the trial proceedings of this case and submitted, as the petitioner, the relevant issue to the Judicial Yuan seeking for an interpretation, based on a hypothesis that the afore-mentioned statute violated the Constitution.
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