中文摘要：

刑法是國家制裁人民犯罪行為的法律。不同的法條，保護不同的法益，也規範不同的行為。法律精神之所在，顯現在法條制定之內容及適用。然而隨著時代推進及社會變化，如何讓法條的適用因時制宜，無異成為和立法精神同樣重要的課題。

義憤殺人及傷害罪，為刑法中特別減輕罪責的規定。正因為是在一般殺人及傷害的犯罪行為下，特別減輕罪責的規定，實務上適用時必然特別謹慎。觀察長久以來的實務判決，以判決數量而言，此二法條適用上的限縮已達極度嚴格的標準。而細查數量有限的判決，又可看出解釋標準浮動的態樣。

本文欲尋根溯源，找出法條之原始立法精神，以對比現今實務之限縮適用是否合於立法之目的。又現今社會環境早已截然不同於當年立法之時代，能否經由學理上的解釋而賦予法條時代新生命。我國以往向有「法不入家門」之傳統社會思想。檢視司法案例時，卻可以發現，因家庭暴力而衍生諸多的殺人及傷害罪。隨著家庭暴力防治法的立法及施行，在實務上，義憤殺人及傷害罪是否也被適用於家暴殺人及傷害罪之刑責減輕。殺害或傷害直系尊親屬是特別加重罪責的規定，是否有義憤殺人或傷害罪同時適用的空間。在檢視法條的同時，思考刑法中制裁的法理，究竟以法律制裁人民真正的目的何在。

英文摘要：

The Criminal Code is the basis of a State when sanctioning those who crosses the line. Different statutes protect different legal interests as well as regulating various actions. The essence of the law is displayed when it is being legislated and applied in practice. However, as time progresses and the value of the society shifts, questions concerning how to apply laws in a manner suitable to the particular time has become undoubtedly as important as any aspect of legislation itself.

The act of killing another on the scene by righteous indignation as well as offenses causing injury are special statutes in the Criminal Code of Taiwan that extenuates sentences. Because of this, in offenses concerning homicide and injury, there are exceptions to extenuate sentences, therefore the administering and applying these exemptions during practice should be treated with due care. Taking a close observation at the volume and number of legal precedents, the two statutes mentioned above has reached extremely strict applicable limitations. From the limited amount of legal precedents in existence, we can observe that there are floating patterns concerning these interpretations.

This dissertation aims to seek the root of the initial legislative purpose, in order to compare in contrast, the applicable limitations of today’s statutes. Another purpose concerning here, is that the social environment is vastly different than those during legislation, whether it is possible to endow a new assessment in statutes through interpretation of the theory of law. In Taiwan, there exists a traditional philosophy and phrase “the law ends its jurisdiction at the threshold of each household”, however when carefully looking into legal cases, we find countless homicides and offenses causing injury as a result of domestic abuse. In the wake of legislations and implementations of the Domestic Violence Prevention Act, in practice, it is still debatable and uncertain whether the act of killing another on the scene by righteous indignation and offenses causing injury is applicable to extenuate sentences when it concerns domestic incidents. According to the Criminal Code of the Republic of China, a person who commits homicide or offense causing injury to their lineal blood ascendant shall be subject to increased punishment, this is also questionable whether extenuating sentences according to the act of killing another on the scene by righteous indignation and offenses causing injury is applicable. When cross examining between different statutes it is with the utmost importance that we determine the reasoning behind sanctions of the Criminal Code, as well as the real intentions of these punishments.

文章連結：

https://hdl.handle.net/11296/ky4su4

資料來源：

臺灣博碩士論文知識加值系統