The Express: "Whether to be loyal between spouses is a private matter for two people"

In the marriage of cracks, do you agree with the state criminal criminal conviction, the implementation of punishment mechanisms?

On 31 March 2020, the Lord Chancellor debated whether the crime of adultery in criminal law was unconstitutional. The provisions of this discussion include article 239 of the Criminal Code for adultery, crime, and article 239 of the Code of Criminal Procedure:

Article 239 of the Criminal Code: "A person who commits adultery with a spouse shall be sentenced to imprisonment for a term of not more than one year. The same is true of them.

other accomplices." However, the crime under article 239 of the Criminal Code is less effective than the person who tells the person of the withdrawal of the spouse. "

Simply put, adultery and crime are telling in Taiwan, and today the husband and the third of a wife who can meet with her, but if she later decides to withdraw her husband, according to article 239 of the Criminal Procedure Law, xiaosan is still the defendant who remains. Prior to 2002, judges challenged the appropriateness of adultery and appealed for interpretation of the Constitution, based on the principle of proportionality and sexual autonomy of the law. At that time, the Justice Held that the crime of adultery still had a role in preserving family values, and finally declared that the provisions of the Act were not unconstitutional.

Eighteen years later, we see that Taiwan has become the last non-Muslim country in Asia to commit adultery. The relevant researchers and some judges questioned the existence and effect son of the bill and again called on the justices to interpret the constitution. In the focus of this rhetorical debate, we pay particular attention to the purpose of including this law. Does it help achieve the goal when it takes the means of "punishing extramarital sex"? and whether certain rights of the people are restricted or infringed in the course of their implementation?

The representatives we are referring to this time are Judge Zhang Yuansen, Judge Wu Zhiqiang and Chief Executive Officer of the Reissin Foundation, Mr. Ji Huirong, and the counter-representatives are Cai Bizhong, Minister of State for Justice, Mr. Zhu Fumei, Public Prosecutor of the Ministry of Justice, and Ms. Xu Yuhui, Aedes aegypti.

Picture: Screenshot of self-talk debate live

"The crime of adultery is to deter and punish those who make mistakes, and the third is also an accomplice to the crime, but also to punish"

"Is it unconstitutional for the Lord Chancellor to have committed an offence against adultery under section 239 of the Criminal Code 18 years ago?" Have our marriage, family, and social form changed since the proposed interpretation No. 554? If there is no major change, there is no need for change and reinterpretation. 」

The Under-Secretary of State for Justice, Tsai Bizhong, on the opposite side, explained and stressed: "Since you enter the institution of marriage on the basis of the freedom of marriage, you must have an obligation to maintain the family system, and this also involves the social security system." This is something that hasn't changed in 18 years. He also mentioned that "we seem to think that the third person is innocent , but if the crime is established , the third person is a necessary accomplice , and without the third person's inducement , the crime of adultery is also very difficult to establish . " 」

The sacred value of marriage is given priority here, emphasizing that those entering the family must uphold such values and be punished if they violate them. And to ask the question, "Can adultery really preserve the beauty of marriage?" He responded: "Everyone thinks we're going to save a broken marriage, and of course that's a hope, but that hope often goes against the original." But even if there is no way to maintain, we should give the punishment, so that the spouse has a rebirth space. 」

Picture: Screenshot of self-talk debate live

On the importance of the "preventive function" of adultery law, Justice Department Prosecutor Zhu Fumei gave another example:

"There was a gentleman who was a waste picker, and his wife was mentally retarded; when he went to collect the garbage, the neighbors came to harass him, first by rape, and then by the other. After the close, because he was busy taking care of the livelihood, also can not catch the man. As a result, the neighbor told him you could tell him. In this way, adultery laws still have some functions that are needed. 」

She says there is a group of people who are unresourced and don't understand the law. Therefore, by the preventive function of the criminal law, will be able to protect their rights and interests.

According to the counter-argument, adultery law is intended to deter the execution of other potential acts through punishment, or to maintain the public's trust in the conduct of adultery laws, rather than to trace whether such acts can save the perpetrator's marriage. But here we can stop to discuss whether it is appropriate for the state's punishment mechanism to intervene in marital emotions. And is there more gender flaws behind such regulations? What's more, in the case of Prosecutor Chu Fumei, it involves involuntary complexity.

Friends of the court, Ms. Xu Yu-hui: "Now that the same marriage law is on the road, the same marriage needs more stability, so we should not abolish the crime of adultery, repeal things will be very big." 」

We continue to see the position of the counter-representative, Ms. Xu Yu-hui. "What we're talking about today is the value of marriage, the value of the family, " she said. Is it because adultery is related to family marriage, so the criminal law should intervene? We all know that there is no room for adultery if we are not married. It is because of marriage, should be regulated. 」

"If you break the duty of loyalty and trust in marriage, it is actually a harm to the family." And the family is the cornerstone of our social country, so we must use criminal law to protect the cornerstone of this society can not be shaken. It is of special significance to place the crime of adultery in the chapter of the family that is obstructing the marriage. 」

Here, Ms. Xu emphasized the linkage between the marriage and family system and the social order, and went on to argue that Article 239 of the Criminal Code should not be repealed, but amended. She also cited the status of the adoption of the same-sex marriage law, and wished to complement her position:

"Because the same-sex law is now on the road, same-sex marriage should also be included in the norms of adultery law, because the same marriage needs more stability." Since they know that they want to live together in a stable manner, this idea is the same as heterosexual marriage, so for the sake of the stability of society as a whole, we need to amend or supplement Article 239 of the Criminal Code, not repeal it. Because of repeal, it's a big deal.

"Really, it's going to be a big deal. "

Picture: Screenshot of self-talk debate live

Here, the counter-government has repeatedly stressed that the crime of adultery had been explained once by the Lord Chancellor 18 years ago, and that the value of marriage and family had not changed during the 18 years. Accordingly, we do not need to interpret the Constitution again. However, if we look at the actual cases in the courts over the past 18 years, the recurring issues of gender inequality and inequality of power, and the threat of marital loyalty in the form of adultery in a form of intimidation, is also a questionable one. Dispute points such as these will be discussed in succession from the point of view of the positive position.

Judge Zhang Yuansen: "Even toothpaste to squeeze from the middle or behind, may endanger marriage, do we have to go to jail?" 」

Zhang Yuansen, one of the representatives of the positive side and one of the representatives of the Constitutional Officials, said that we should first look back at the purpose of adultery and the pursuit of crime. What are the legal benefits to be protected by adultery?

"The first may be to preserve the survival of marriage and the protection of the family. At present, our country's law, two people are not to get married, is not to divorce, the state is respected, this is two people's private affairs. But again, it's a private matter for two people to be loyal to your spouse. The state should not use criminal law to intimidate people into being loyal. Even toothpaste to squeeze from the middle or behind can endanger marriage, do we have to go one by one into the prison? 」

What he wants to discuss is that loyalty in marriage comes from emotional relationships, which is not the mandatory norm of national law, or what effect can such norms achieve? Maybe we all need to think again.

Picture: Screenshot of self-talk debate live

In this regard, Judge Wu Zhiqiang also mentioned that the criminal law, Article 239, the content of the protection of the integrity of the marriage of the husband and wife inviolability, such a concept is actually to emphasize the sanctity of marriage. 」

"Suppose the legislator at the time meant that, once adultery, marital disharmony, and child rearing became a problem, the family function was impaired and thus a situation where society was at risk; Cases such as marital violence, or marital marital loss and long-term quarrels leading to an affair tell us that adultery is not necessarily the 'cause' that shakes the relationship, and it is likely that your relationship is long overdue. 」

Two judges here have point out that if the crime of adultery is intended to maintain the success of marriage and family, then we may have to look at the perspective that the survival of marriage and happiness, originally can not be forced through the state to endorse. Marriage itself contains a variety of complex face,as Judge Zhang Yuansen mentioned, the marriage in the pain of a lot of ah, there may be an affair, economics, child-rearing, mother-in-law relations, adultery is only one of them. We can understand that it can be painful to find out that a spouse is adultery, but not one person is suffering and punishes another with criminal law, it is just a state of revenge. 」

As Judge Wu Zhiqiang stressed, "Everyone's sentimental values are different, criminal law sanctions can not improve the relationship between people, such a round-the-top system, will not ensure that the hope of maintaining marriage will not bring greater disappointment." 」

In addition, when legislators want to pass this law to allow couples to get out of litigation and rebuild the old relationship at an early date, "but after you mention that the relationship between the two parties will be affected, hurt first and then hurt the system, so that couples can rebuild the old?" 」

"Most of the punishments for adultery are for women, even victims of sexual assault," said Ji Huirong, executive director of the Reed Foundation. 」

Next, we also discuss the issue of adultery and the gender of the spread of crime. In past court figures, more men than women were prosecuted, but more women than men were convicted. What's the reason?

In response, the expert, Professor Li Nianzu, said, "In fact, our traditional crime of adultery exists to preserve the rights of the husband, because in the past it was polygamy." Judge Lin Menghuang added: "Traditional Chinese law only taught the wife's chastity obligation, adultery is the synonyms of the wife's infidelity, it can be seen that the crime of adultery is out of the patriarchal thinking." From punishing women with husbands to punishing extramarital sex of persons with spouses, it seems to be the principle of equality between men and women, but the actual court data point out that there is a clear gender inequality in punishment and an unequal ratio between people of opposites; 」

"It is reasonable to say that since we punish adultery at the same time, we should be the same in terms of gender, but the figures show that women are bigger than men. Here's a case in point to prove the specific existence of gender discrimination. Male superiority and male superiority still exist, while the criminal law provides for attachment to such social consciousness and consolidates such gender inequalities. 」

Because the law provides that "not to be withdrawn, not to withdraw", in the end, adultery has become a female punishment of women's regulations, and may help to "all three first initiative to seduce, men can be forgiven" traditional values. Judge Zhang Yuansen also expressed his opinion on the crime: "In the institution of marriage, sexual loyalty exists between spouses, not between people and spouses." Whether there is any breach of loyalty between spouses is between them, it has nothing to do with people. So I don't think it's reasonable to punish the crime. 」

In the case of defects in the crime, Chief Executive Ji Huirong also mentioned an apparent case of sexual assault with unequal power:

"In 1994, a big wolf sexually assaulted a female student, who bravely wanted to come out, but didn't think that the wolf's spouse was going to sue her for adultery. After two or three years of litigation, the case was not only established, but the schoolgirl had to pay half a million to her family. This thing made me very shocked by the existence of adultery, it actually helped the powerful sexual predator, so that he can safely underthe clothes. 」

Chief Executive Ji Huirong finally mentioned that your marriage is happy or happy, need to be sustained through the state to intimidate you? "Now we don't even punish primary school students, we don't advocate punishing children through intimidation, they have to be good." Taiwan is also guilty of adultery, a minority country in the world. Much of the remaining Islam is left. Are we going to stay in this state? 」

Picture: Screenshot of self-talk debate live

Finally, we also emphasize the privacy and autonomy that adultery may violate.

Judge Wu Zhiqiang said that the people, as the subject of constitutional protection, will not be different because you have no marriage or family:

"To prove that adultery, whether in bed or recorded, is a serious violation of the privacy of an individual." And if today due to extramarital sex gave birth to children, but there is still adultery crime, minor children are likely to become the object of litigation attack and defense object and props. 」

However, if you have some anxiety about the discussion of adultery decriminalization, do you worry that less state-led intervention will make marriage less secure? There is a moral angle between interpersonal emotion and institutional constraint. Today we can rationally analyse the flaws behind adultery laws, and where the entire legal system should look at and improve together; but how can we look back at the issue of affair infidelity when we go back to the actual married family?

In this regard, would like to use The phrase mentioned in This Speech, "Where is the right of the state?" It should be to maintain a matrimonial system, but it does not guarantee that your marriage will be happy. Marriage is full of your own business. 」

In this speech debate, both the right and the opposite side stand, but perhaps we just need to answer a very basic question first - whose responsibility is the family and marriage? Does it need to rely on legal intervention for its happiness or not? Perhaps what we need most is not fear of fear, revenge or punishment, but the freedom to choose for the happiness we want. The law is the bottom line, and before the law, there's more we can do.