全世界第一個超國界人權法院宣告同性伴侶婚姻平等保障：
美洲人權法院OC-24/17諮詢意見簡介
美洲人權法院OC-24/17諮詢意見簡介
- 1月 10 週三 201811:17
全世界第一個超國界人權法院宣告同性伴侶婚姻平等保障： 美洲人權法院OC-24/17諮詢意見簡介
- 11月 09 週四 201713:00
德國性別認同人權保障及性別登記二元限制之重大發展：德國聯邦憲法法院承認人民有國家為性別多元登記之基本權利
德國性別認同人權保障及性別登記二元限制之重大發展
張宏誠
張宏誠
- 4月 07 週一 201411:07
[美國聯邦最高法院USSC] Lawrence v. Texas, 539 U.S. 558 (2003)（中英對照）
- 4月 13 週五 201202:15
德國刑法第173條血親和姦罪v.s.歐洲人權公約第8條
歐洲人權法院第五庭在當地時間4月12日針對德國刑法第173條血親和姦罪（一、與卑親屬通姦的，處3年以下自由刑或罰金。二、與尊親屬通姦的，處兩年以下自由刑或罰金；親屬關係消除的，仍適用本規定；兄弟姐妹通姦的，處相同之刑罰。三、卑親屬和兄弟姐妹在犯罪時不滿18歲的，不以本規定處罰。）之處罰有無侵害歐洲人權公約第8條保障之私人生活（包括性生活）與家庭生活（當事人已經育有四子並組織家庭），以七票一致通過並無牴觸公約第8條規定之結論作成Stübing v. Germany(Application no. 43547/08)判決，我深不以為然。
1. 幾個重要事實：雖然是個案事實，但仍有需要深思的地方。當事人三歲即被送往孤兒院而後被收養，與其原生家庭完全斷絕任何聯繫，多年後因其生母死亡才與原生家庭再度聯繫，之後與其具有血親關係之妹妹「合意」發生性行為，同居數年並產下四子。
2. 這個個案事實是，假如是在完全不知道彼此的血親關係下發生性行為的話，是否仍構成犯罪？假如是，那這刑法規定所追求的法益究竟是甚麽？這樣的法益，足以支持這樣的刑法處罰規定嗎？
3. 這個案子固然經過德國聯邦憲法法院慎重討論並作成判決(BVerfGE 120, 224)，但並不是就足以認定系爭處罰規定與公約第8條有無牴觸即可省略不談。
4. 對於性行為的管制，不管是歐洲人權法院或者其他國家的釋憲機關，甚至任何憲法理論，都是關注在行為人的「自主權」之上，而這樣的自主權，難道就可以只是為了維護「社會道德」就完全退讓？歐洲人權法院或釋憲機關就完全退守人權公約或憲法對於性自主權的保障？
5. 這些年歐洲人權法院對於所謂「歐洲共識」或者會員國的「判斷餘地」的見解，看似時退時進，在不同問題上因為不同法官組成而呈現紛歧。不過，對於私人生活中性行為自由的保障，早就建立相當一致的見解，對於同性性行為、BDSM性行為甚至合法性行為同意年齡，都是在同樣的原則下，認為會員國單純以「社會道德」作為處罰所欲追求的目的（法益），並不足以構成處罰手段的正當性。
6. 這個判決的七位法官，分別來自捷克、斯洛伐尼亞、烏克蘭、列支登斯敦、愛爾蘭、德國及法國，是否因此影響作成判決的心證，固然無法速斷。但可以清楚從判決中看出，第五庭法官對於公約第8條的操作，完全省略「手段」的審查。套用比例原則的審查基準，這個判決中完全看不出手段與手段及目的關聯性的審查，直接認定目的正當，然後以歐洲共識、判斷餘地一筆帶過，即便用德國聯邦憲法法院針對本案審查的過程，也很難因此說明系爭處罰規定究竟與公約第8條並無牴觸的理由是否充分。
7. 這件案件最根本的問題在於，究竟處罰血親間合意性行為的理由，也就是所欲追求的法益，究竟是否構成合憲的理由？以血親關係之有無作為限制從事性行為的自由與自主，究竟有甚麽具體理由？而這樣的理由與限制之間究竟有甚麽關聯性？難道「社會道德」在法律規範中便可無線上綱？兩者規範的界線在哪裡？（比較司法院釋字第554號解釋）
判決正式版本僅有英文版，亦以英文版為準。判決全文如下附。
----------------------------------------------------------------------------------------
FIFTH SECTION
CASE OF STÜBING v. GERMANY
(Application no. 43547/08)
JUDGMENT
STRASBOURG
12 April 2012
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
- 11月 14 週一 201118:44
韓國憲法法院詐術性交罪違憲判決與軍中同性性行為處罰合憲判決
之前就對韓國憲法法院的建築、網站與識別標誌（藍色大門）、判決有一些基本研究與興趣，今天早上有機會聆聽韓國憲法法院大法官李東洽（Justice Lee, Dong-Heub）的演講，針對韓國憲法法院建構與23年來的運作有一些基本瞭解。
韓國憲法法院的裁判有一些有趣的發展，例如日前憲法法院認為軍隊禁止同性戀者服役並不違憲，但對韓國刑法典第304條使人誤以締結婚姻關係為目的或其他詐術性交罪（相當於我國刑法第229條）之處罰，過度侵害成年男性的性自主權及隱私權而宣告違憲（2008 Hun-Ba 58）。
這裡會令人好奇韓國的憲法文化與社會互動。比如說同性戀議題，在韓國法律層面非常保守，但同志電視劇、電影卻有非常自由、開放的發展；又如上開判決，是否反映韓國某種男女間性權力關係的社會現實？又，韓國今年九月在釜山主辦亞洲憲法法院協會籌備會議，也可以發現韓國憲法法院積極發揮其國際影響力的企圖（比如說憲法法院的判決英文化程度令人印象深刻）。
韓國憲法法院英文網站：http://english.ccourt.go.kr/
--------------------------------------
上開詐術性交罪違憲判決英文翻譯：
Sexual Intercourse under Pretence of Marriage Case
<2008 Hun-Ba 58, 2009 Hun-Ba 191(Consolidated), November 26, 2009>
In this case, the Constitutional Court held unconstitutional the portion of Article 304 of the Criminal Act which provides that ‘a person who induces a woman who is not prone to an obscene act into sexual intercourse under pretence of marriage,’ on the grounds that it infringes on men’s right to sexual self-determination, right to private secrecy and freedom of privacy in violation of the principle against excessive restriction.
【Background of the Case】
Complainants were respectively convicted of tricking a woman not prone to an obscene act into sexual intercourse by falsely agreeing to tie the knot in violation of Article 304 of the Criminal Act. According to Article 304 of the Criminal Act, a person who induces a female who is not prone to an obscene act into sexual intercourse under pretence of marriage or through other fraudulent means (hereinafter the “engagement fraud”), shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won. Regarding this, the complainants respectively filed a constitutional complaint, arguing that the portion of ‘a person who induces a woman who is not prone to an obscene act into sexual intercourse under pretence of marriage’ (hereinafter, the “Instant Provision”) infringes on their fundamental rights. The text of the Instant Provision is as follows:
【Provision at Issue】
Criminal Act
Article 34 (Sexual Intercourse under Pretence of Marriage)
A person who induces a female who is not prone to an obscene act into sexual intercourse under pretence of marriage or through other fraudulent means, shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won.
【Summary of the Decision】
In an opinion of 6 (unconstitutional): 3 (constitutional, including supplementary opinion by one justice), the Constitutional Court held the Instant Provision violates the Constitution. The summary of decision is as follows:
I. Majority Opinion by Six Justices
The legislative purpose of the Instant Provision cannot be regarded legitimate for the following reasons: First, it is totally within the realm of privacy for a man to have a sexual relationship with a female partner, against which the state’s interference should be as minimum as possible if no coercion or violence is involved. Moreover, such a relationship usually has a tendency to be exaggerated. Therefore, the Criminal Act does not punish a pre-marital sex relationship, and in this regard, there is also no reason to punish the ordinary conduct of inducing a partner into a pre-marital sex relationship. Next, if a woman, after voluntarily deciding to have a pre-marital sex relationship with a man who demands it, later asks the court to punish him demanding the decision was made by mistake, that is an act of denying her own right to sexual self-determination. Also, under the Instant Provision, the subject of protection is limited to women who have no habit of acting obscenely while all other women who have sexual relationships with multiple partners are stigmatized as ‘woman who are prone to obscene act’ and excluded from the protection, which ends up forcing sexual ideology based on patriarchy and moralism on women. In this regard, the Instant Provision not only runs afoul of the state’s constitutional duty to create and maintain a gender equal society (Article 36, Section 1 of the Constitution), but also denies women’s right to self-determination regarding sexual activity under the guise of protecting women, by treating them as not being mature enough to have a capacity to voluntarily make such a decision. Therefore, the right to sexual self-determination to be protected by the Instant Provision goes against women’s dignity and value.
As our society has gone through changes in public legal awareness regarding sex and marriage, there seems no pressing need to provide criminal protection for a woman who mistakenly enters into a pre-marital sex relationship with a male partner. It is in the heart of people’s privacy to have any kind of sexual or romantic relationships whatsoever and such relationships should be regulated by law only when the private relationships are known to the public and clearly proven to exert an evil influence on society. Also, in modern criminal jurisprudence, there is a growing tendency to avoid criminalizing activities related to people’s private life. And the crime of engagement fraud has been abolished in many countries and, for example, Japan, Germany and France have no statutory provision that stipulates such a crime. Also, such criminal punishment, while losing its effectiveness as a penalty imposed by the state, increasingly brings about side effects. Given all the aforementioned aspects, criminally punishing a person who induces a woman into sexual intercourse under pretence of marriage fails to follow the rule of appropriateness of means and the rule of the least restrictive means to achieve the legislative purpose.
The Instant Provision excessively restricts men’s fundamental rights such as the right to sexual self-determination, the right to private secrecy and the freedom of privacy, by subjecting sexual relationships within the zone of privacy to criminal punishment. But the public interest of protecting a woman without habit of acting obscenely who enters into sexual intercourse with a cause mistakenly perceived by her, which drastically loses its effectiveness in this modern society, does not seem to outweigh the importance of the infringed fundamental rights. In this regard, it fails to strike balance between legal interests.
Therefore, the Instant Provision goes against the Constitution, as it excessively restricts men’s right to sexual self-determination, right to private secrecy and freedom of privacy in violation of the rule against excessive restriction stipulated in Article 37, Section 2 of the Constitution.
II. Opinion of Constitutionality by Three Justices
Protection under the Instant Provision extends exclusively to women because it is perceived by the legislators that when a woman induces a man into sexual intercourse under pretence of marriage, the man’s right to sexual self-determination is less likely to be infringed. Considering the physical difference and ethical, emotional perception gap toward sexual intercourse between men and women, it is hard to conclude that the legislative decision is based on illegitimate gender discrimination, imposes the old patriarchal value of chastity or forces women to keep virginity before marriage.
Having sexual intercourse with a female partner under pretence of marriage is a conduct that infringes other people’s legal interest, going beyond the acceptable boundary of the right to self-determination. Therefore, the Instant Provision cannot be regarded as infringing on the right to sexual self-determination of a man who induces a female not prone to an obscene act into sexual intercourse under pretence of marriage. Also, a man’s conduct of lying to a woman about marriage without intention to do so does not fall into the category of privacy to be protected by Article 17 of the Constitution. Therefore, as long as a man engages in a wrongful conduct of inducing a woman into sexual intercourse under pretence of marriage, in spite of the fact that it is the woman’s fault for failing to recognize her partner is telling a lie, it is still required to impose criminal punishment on such a conduct.
When a woman files a charge against a man for allegedly deceiving her into having sexual intercourse under pretence of marriage, such a case should be regarded as becoming an issue of disturbing social order, beyond the zone of privacy and inherent limitation of fundamental rights. In this stage, therefore, the need to maintain social order is far more important than the need to protect private life of the parties to the case. Also, when an individual’s private life infringes upon other’s legal interests, such infringement becomes an issue outside the zone of privacy and inherent limitation of fundamental rights and therefore, such a case should be considered beyond the coverage of protection under Article 17 of the Constitution within this limit. In this regard, punishing a man who commits a crime of engagement fraud does not seem to fail to strike balance between legal interests.
As the Instant Provision is enacted to provide punishment only for a case where a clear causal relationship between the conduct of having sexual intercourse under pretense of marriage and the consent to sexual intercourse and the sexual intercourse is established, thereby being legitimate in its purpose, it cannot be considered as violating the principle of equality.
III. Supplementary Opinion to the Opinion of Constitutionality by One Justice
The Instant Provision is not meant to punish the private conduct of sexual intercourse itself, but rather, it is related to a case where a woman, who is damaged by deception or fraud committed by her male partner, actively requests the court to review the case and punish the male partner (engagement fraud is a crime subject to victim’s complaint). Therefore, this is simply not a case of relationship of utmost intimacy between man and woman within the zone of privacy any more, but a case in which state intervention can be allowed.
It is still not safe to say that the entire women in our society now do not need constitutional or legal protection and consideration any more. Rather, as we understand that there are still a small number of women who need to get constitutional or legal protection and consideration in our society as ever, it seems too early to repeal the Instant Provision at this point of time.
The Instant Provision only punishes the anti-social conduct of a man who deceives a woman into sexual intercourse under pretence of marriage without true intention to do so, considering her as a mere object to satisfy sensual pleasure. Therefore, simply recognizing the Instant Provision to infringe on the man’s right to sexual self-determination, without consideration of the aforementioned aspect, will result in acknowledging the freedom of deception, fraud or defraudation in sexual relationship, which is clearly unjustifiable and unacceptable.
【Related Case】
As for the Constitutional Court Decision of 99Hun-Ba40, 2002Hun-Ba50 (consolidated) that declared Article 304 of the Criminal Act to be constitutional on October 31, 2002, is hereby altered inasmuch as it conflicts with the Holding of this decision.
--------------------------------------
軍中同性性行為處罰合憲判決：http://www.ccourt.go.kr/home/iframe/storybookinfo_view02.jsp?board_id=320&comm_id=M0004&media_id=261424765&pg=1&list_type=04&gubun=1
軍中同性性行為處罰合憲判決相關英文報導：
韓國憲法法院的裁判有一些有趣的發展，例如日前憲法法院認為軍隊禁止同性戀者服役並不違憲，但對韓國刑法典第304條使人誤以締結婚姻關係為目的或其他詐術性交罪（相當於我國刑法第229條）之處罰，過度侵害成年男性的性自主權及隱私權而宣告違憲（2008 Hun-Ba 58）。
這裡會令人好奇韓國的憲法文化與社會互動。比如說同性戀議題，在韓國法律層面非常保守，但同志電視劇、電影卻有非常自由、開放的發展；又如上開判決，是否反映韓國某種男女間性權力關係的社會現實？又，韓國今年九月在釜山主辦亞洲憲法法院協會籌備會議，也可以發現韓國憲法法院積極發揮其國際影響力的企圖（比如說憲法法院的判決英文化程度令人印象深刻）。
韓國憲法法院英文網站：http://english.ccourt.go.kr/
--------------------------------------
上開詐術性交罪違憲判決英文翻譯：
Sexual Intercourse under Pretence of Marriage Case
<2008 Hun-Ba 58, 2009 Hun-Ba 191(Consolidated), November 26, 2009>
In this case, the Constitutional Court held unconstitutional the portion of Article 304 of the Criminal Act which provides that ‘a person who induces a woman who is not prone to an obscene act into sexual intercourse under pretence of marriage,’ on the grounds that it infringes on men’s right to sexual self-determination, right to private secrecy and freedom of privacy in violation of the principle against excessive restriction.
【Background of the Case】
Complainants were respectively convicted of tricking a woman not prone to an obscene act into sexual intercourse by falsely agreeing to tie the knot in violation of Article 304 of the Criminal Act. According to Article 304 of the Criminal Act, a person who induces a female who is not prone to an obscene act into sexual intercourse under pretence of marriage or through other fraudulent means (hereinafter the “engagement fraud”), shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won. Regarding this, the complainants respectively filed a constitutional complaint, arguing that the portion of ‘a person who induces a woman who is not prone to an obscene act into sexual intercourse under pretence of marriage’ (hereinafter, the “Instant Provision”) infringes on their fundamental rights. The text of the Instant Provision is as follows:
【Provision at Issue】
Criminal Act
Article 34 (Sexual Intercourse under Pretence of Marriage)
A person who induces a female who is not prone to an obscene act into sexual intercourse under pretence of marriage or through other fraudulent means, shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won.
【Summary of the Decision】
In an opinion of 6 (unconstitutional): 3 (constitutional, including supplementary opinion by one justice), the Constitutional Court held the Instant Provision violates the Constitution. The summary of decision is as follows:
I. Majority Opinion by Six Justices
The legislative purpose of the Instant Provision cannot be regarded legitimate for the following reasons: First, it is totally within the realm of privacy for a man to have a sexual relationship with a female partner, against which the state’s interference should be as minimum as possible if no coercion or violence is involved. Moreover, such a relationship usually has a tendency to be exaggerated. Therefore, the Criminal Act does not punish a pre-marital sex relationship, and in this regard, there is also no reason to punish the ordinary conduct of inducing a partner into a pre-marital sex relationship. Next, if a woman, after voluntarily deciding to have a pre-marital sex relationship with a man who demands it, later asks the court to punish him demanding the decision was made by mistake, that is an act of denying her own right to sexual self-determination. Also, under the Instant Provision, the subject of protection is limited to women who have no habit of acting obscenely while all other women who have sexual relationships with multiple partners are stigmatized as ‘woman who are prone to obscene act’ and excluded from the protection, which ends up forcing sexual ideology based on patriarchy and moralism on women. In this regard, the Instant Provision not only runs afoul of the state’s constitutional duty to create and maintain a gender equal society (Article 36, Section 1 of the Constitution), but also denies women’s right to self-determination regarding sexual activity under the guise of protecting women, by treating them as not being mature enough to have a capacity to voluntarily make such a decision. Therefore, the right to sexual self-determination to be protected by the Instant Provision goes against women’s dignity and value.
As our society has gone through changes in public legal awareness regarding sex and marriage, there seems no pressing need to provide criminal protection for a woman who mistakenly enters into a pre-marital sex relationship with a male partner. It is in the heart of people’s privacy to have any kind of sexual or romantic relationships whatsoever and such relationships should be regulated by law only when the private relationships are known to the public and clearly proven to exert an evil influence on society. Also, in modern criminal jurisprudence, there is a growing tendency to avoid criminalizing activities related to people’s private life. And the crime of engagement fraud has been abolished in many countries and, for example, Japan, Germany and France have no statutory provision that stipulates such a crime. Also, such criminal punishment, while losing its effectiveness as a penalty imposed by the state, increasingly brings about side effects. Given all the aforementioned aspects, criminally punishing a person who induces a woman into sexual intercourse under pretence of marriage fails to follow the rule of appropriateness of means and the rule of the least restrictive means to achieve the legislative purpose.
The Instant Provision excessively restricts men’s fundamental rights such as the right to sexual self-determination, the right to private secrecy and the freedom of privacy, by subjecting sexual relationships within the zone of privacy to criminal punishment. But the public interest of protecting a woman without habit of acting obscenely who enters into sexual intercourse with a cause mistakenly perceived by her, which drastically loses its effectiveness in this modern society, does not seem to outweigh the importance of the infringed fundamental rights. In this regard, it fails to strike balance between legal interests.
Therefore, the Instant Provision goes against the Constitution, as it excessively restricts men’s right to sexual self-determination, right to private secrecy and freedom of privacy in violation of the rule against excessive restriction stipulated in Article 37, Section 2 of the Constitution.
II. Opinion of Constitutionality by Three Justices
Protection under the Instant Provision extends exclusively to women because it is perceived by the legislators that when a woman induces a man into sexual intercourse under pretence of marriage, the man’s right to sexual self-determination is less likely to be infringed. Considering the physical difference and ethical, emotional perception gap toward sexual intercourse between men and women, it is hard to conclude that the legislative decision is based on illegitimate gender discrimination, imposes the old patriarchal value of chastity or forces women to keep virginity before marriage.
Having sexual intercourse with a female partner under pretence of marriage is a conduct that infringes other people’s legal interest, going beyond the acceptable boundary of the right to self-determination. Therefore, the Instant Provision cannot be regarded as infringing on the right to sexual self-determination of a man who induces a female not prone to an obscene act into sexual intercourse under pretence of marriage. Also, a man’s conduct of lying to a woman about marriage without intention to do so does not fall into the category of privacy to be protected by Article 17 of the Constitution. Therefore, as long as a man engages in a wrongful conduct of inducing a woman into sexual intercourse under pretence of marriage, in spite of the fact that it is the woman’s fault for failing to recognize her partner is telling a lie, it is still required to impose criminal punishment on such a conduct.
When a woman files a charge against a man for allegedly deceiving her into having sexual intercourse under pretence of marriage, such a case should be regarded as becoming an issue of disturbing social order, beyond the zone of privacy and inherent limitation of fundamental rights. In this stage, therefore, the need to maintain social order is far more important than the need to protect private life of the parties to the case. Also, when an individual’s private life infringes upon other’s legal interests, such infringement becomes an issue outside the zone of privacy and inherent limitation of fundamental rights and therefore, such a case should be considered beyond the coverage of protection under Article 17 of the Constitution within this limit. In this regard, punishing a man who commits a crime of engagement fraud does not seem to fail to strike balance between legal interests.
As the Instant Provision is enacted to provide punishment only for a case where a clear causal relationship between the conduct of having sexual intercourse under pretense of marriage and the consent to sexual intercourse and the sexual intercourse is established, thereby being legitimate in its purpose, it cannot be considered as violating the principle of equality.
III. Supplementary Opinion to the Opinion of Constitutionality by One Justice
The Instant Provision is not meant to punish the private conduct of sexual intercourse itself, but rather, it is related to a case where a woman, who is damaged by deception or fraud committed by her male partner, actively requests the court to review the case and punish the male partner (engagement fraud is a crime subject to victim’s complaint). Therefore, this is simply not a case of relationship of utmost intimacy between man and woman within the zone of privacy any more, but a case in which state intervention can be allowed.
It is still not safe to say that the entire women in our society now do not need constitutional or legal protection and consideration any more. Rather, as we understand that there are still a small number of women who need to get constitutional or legal protection and consideration in our society as ever, it seems too early to repeal the Instant Provision at this point of time.
The Instant Provision only punishes the anti-social conduct of a man who deceives a woman into sexual intercourse under pretence of marriage without true intention to do so, considering her as a mere object to satisfy sensual pleasure. Therefore, simply recognizing the Instant Provision to infringe on the man’s right to sexual self-determination, without consideration of the aforementioned aspect, will result in acknowledging the freedom of deception, fraud or defraudation in sexual relationship, which is clearly unjustifiable and unacceptable.
【Related Case】
As for the Constitutional Court Decision of 99Hun-Ba40, 2002Hun-Ba50 (consolidated) that declared Article 304 of the Criminal Act to be constitutional on October 31, 2002, is hereby altered inasmuch as it conflicts with the Holding of this decision.
--------------------------------------
軍中同性性行為處罰合憲判決：http://www.ccourt.go.kr/home/iframe/storybookinfo_view02.jsp?board_id=320&comm_id=M0004&media_id=261424765&pg=1&list_type=04&gubun=1
軍中同性性行為處罰合憲判決相關英文報導：
- 1月 18 週二 201111:23
[歐洲人權法院ECtHR] L. v. Lithuania (2007)（立陶宛於性別變更相關要件及程序未即時立法案）（中英對照）
1
書卷萬讀[Assez connu. Les arrêts de la vie.] (10)