Disputes Relating to Adultery and Proposed Legislations

• Main Authors: Chen, Ku-Kai, 陳固愷
• Other Authors: Jin, Zong-Li
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/61466775396430765994

碩士 === 輔仁大學 === 法律學系 === 102 === As the times and the social environment rapidly change, there have also been changes in the values, morals and legal awareness of the people. There are now diverse views for and against whether a person in an existing marital relationship who engages in sexual relations with a person of the opposite sex outside the marital relationship (so-called adultery) should continue to be subject to criminal sanctions. This paper carries out an in-depth study on the offense of adultery under Article 239 of the Criminal Code, including the historical provisions for punishment of adultery, the legislative background to the adultery provisions as they are, the problems encountered in legal practice, as well as legislative examples from overseas. The author also provides an in-depth analysis of the legal rights and interests being protected by the criminalization of adultery. This paper intends to provide an organization of the prevailing legal opinions in practice and the criminal theories involved in the offense. The author also takes into comprehensive account overseas legislative examples and the social customs in Taiwan, so as to offer suggestions for the likely development of adultery provisions in Taiwan as well as future directions for amendment. An outline of each of the chapters in this paper is set out below: Chapter 1 “Introduction” primarily introduces the motivation for researching this paper, the purpose of the research, research methods and the research structure. Chapter 2 describes the criminal provisions for the offense of adultery through the ages, and considers the impact of Confucianism on the criminalization of adultery. Chapter 3 describes the legislative background and purpose for the prevailing adultery provisions, and compares them with the rights and interests being protected by the offense of adultery as enunciated in Interpretation No. 554 issued by the Justices of the Constitutional Court, so as to clarify what exactly are the legitimate rights and interests intended to be protected by the prevailing adultery laws. Chapter 4 describes the status of adultery in Criminal Code theory, and the questions and difficulties encountered when applying the legal provisions for adultery in practice. Chapter 5 considers the views being expressed in foreign jurisdictions regarding whether adultery should be decriminalized, so as to analyze the pros and cons for possible decriminalization of adultery in Taiwan from the perspective of comparative law. Chapter 6 assesses whether criminalization of adultery is, in fact, proper, based on the principle of safeguarding legal interests and the restraint of the criminal law. The assessment is carried out in light of the rights and interests being protected by criminalization of adultery, as explained in Interpretation No. 554 of the Justices of the Constitutional Court. Chapter 7 “Conclusion” brings together all of the above discussions, and offers suggestions for future legislation based on the position of gradual abolishment of the adultery offense.