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反滲透 先整頓通敵相關法律(Issues amending espionage laws)◎范姜提昂

[自由時報+Taipei Times]

[2017-03-29 06:47:42]

 

司法上,台海兩國困境相同:雙方憲法都不承認對方是外國,因此,起訴通敵叛國者所引據之法律,若明訂其通敵對象為外國,會牴觸憲法。

目前,在現行憲法架構下,雙方各自解套,卻高下立判:中國辦台諜,照樣嚇嚇叫;而我國辦共諜,刑責之輕之毫無嚇阻力,令人扼腕!法官通常選擇適用「國安法」,因為「國安法」明文規定通敵之對象包括「大陸地區」,而「刑法」外患罪相關規定則沒有明指「大陸地區」。

重點是「刑法外患罪章」規定的間諜罪,境況最嚴重者可處無期徒刑或死刑;而「國安法」只有五年以下,天差地別!史上最大共諜案的解放軍退役上尉鎮小江,依國安法只判四年,涉案國軍退將許乃權只判兩年十個月定讞,最大案尚且如此,遑論其他?值得注意的是最高法院宣布「刺探國防機密」部分,高檢署另以「刑法外患罪」偵辦。

刑法外患罪所指涉的不是外國嗎?原來,有關洩漏機密的一O九條,其第二項明文指涉外國,自有違憲顧慮;但第一項無涉外國,可適用。至於刑期,涉外國者之刑期十年以下;無涉外國者七年以下,嚇阻效果自有別。

回顧鎮小江接受四年徒刑,放棄上訴時,一臉的不屑無所謂,便知為了顧忌牴觸現行憲法,以致共諜囂張之荒謬!更令人氣結的是,同樣有違憲顧慮的中國,所有適用於涉及外國的法律也適用台灣,為什麼?

解套方法其實很簡單,中國將所有涉及勾結外國的法律,包括刑法、國安法、反間諜法,一律以「境外」涵蓋台灣。其實,以上法律適用之困境,我國「陸海空軍刑法」已有初步解套,其第十條類同美國憲法,以「敵人」涵蓋敵國與對內敵營(中共),定義為:「與中華民國交戰或武力對峙之國家或團體」。

國會在制定反滲透法之前,當先以「境外」「敵人」概念整頓所有相關法律,以免重疊矛盾;而提高刑期也有了刑法依據,免遭白色恐怖之譏。

另外,陸海空軍刑法「違反效忠國家職責罪」規定:「為敵人從事間諜活動,或幫助敵人之間諜從事活動者,處死刑或無期徒刑,情節輕微者,得減輕其刑。」可否修訂為適用退役若干年內之軍人而不違憲?亦當研議。

Issues amending espionage laws

By Christian Fan Jiang 范姜提昂

Taiwan and China face the same difficulty: Their constitutions do not recognize each other as a “foreign state.” This means that when Taiwan or China prosecute a person for treason and colluding with the other side of the Strait, they are contradicting their constitutions if the law refers to a “foreign state.” The Chinese government continues to hand down heavy sentences to Taiwanese spies, while the Taiwanese government hands down such light sentences to Chinese spies that it has no deterrent effect. This is disconcerting.

Taiwanese judges usually rely on the National Security Act (國家安全法) in such cases, because it includes collusion with “Mainland China” as an offense, and because the Criminal Code (刑法) does not state that contact with “Mainland China” constitutes treason. The Criminal Code says that the heaviest sentence for espionage is life imprisonment or the death sentence, while the National Security Act says that the maximum sentence is a jail term of no more than five years.

In Taiwan’s biggest Chinese espionage case, retired Chinese People’s Liberation Army (PLA) captain Zhen Xiaojiang (鎮小江) was sentenced to four years in prison, while retired major-general Hsu Nai-chuan (許乃權), who was recruited by Zhen, was sentenced to two years and 10 months in prison, both based on the National Security Act. If even the biggest cases are publishable with such light sentences, then what about others?

It should be noted that the Supreme Court ruled on the part of the case that dealt with divulging national defense secrets, while the High Prosecutors’ Office investigated the case based on the Criminal Code.

In the code, treason offenses refer to collusion with a “foreign state.” There are two paragraphs in Article 109 of the code regarding the disclosure of confidential information. The second paragraph of the article explicitly deals with foreign states, so it might be unconstitutional to cite. However, the first paragraph is applicable, as it does not involve foreign states.

As for the length of prison terms, the first paragraph of the article states that any person disclosing confidential information can be sentenced to up to seven years in prison, while the second paragraph states that any person disclosing confidential information to a foreign state or its agent can be sentenced to up to 10 years in prison. Seven years in the paragraph that does not mention “foreign states” and 10 years in the one that does: Of course there is a difference in deterrence.

Looking at the Zhen case, the contemptuous and careless look on his face when he gave up his right to appeal the case tells us how preposterous it is when a Chinese spy can show off his arrogance just because Taiwan avoids violating the Constitution.

Even more depressing, although China should have the same concerns over violating its constitution, it applies all its laws involving a foreign state to Taiwan as well. Why? It is very simple: because all Chinese laws — including its Criminal Code, National Security Act and Anti-espionage Act — involving affairs “outside its borders” apply to Taiwan.

These concerns about the application of laws have all been preliminarily addressed in Taiwan’s Criminal Code of the Armed Forces (陸海空軍刑法). Similar to the US Constitution, Article 10 of the code says that “the word ‘enemy’ in the code denotes any country or organization that engages in or whose force confronts with the Republic of China.”

Before writing a law against espionage, the legislature should amend all related laws by integrating the concept of “outside the borders” and “enemy” to avoid overlap or contradicting itself. It would also allow heavier penalties based on the Criminal Code.

In addition, according to Article 17 of the Criminal Code of the Armed Forces: “A person who commits an act of espionage for an enemy or renders aid to an enemy’s spy shall be punished with death or imprisonment for life … If the offense committed was slight, the punishment may be reduced.”

It would also be worth discussing whether it would it be possible to amend the code to make it applicable to retired military officers within a certain number years after retirement without violating the Constitution.

Christian Fan Jiang is a member of the Northern Taiwan Society.

Translated by Eddy Chang

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