衛星定位追蹤之刑責--評臺灣高等法院100年度上易字第2407號判決

Abstract

衛星定位技術在當今的日常生活裡已被廣泛運用，私人及國家亦將其當成蒐集犯罪證據的手段。然而，衛星定位作為侵害隱私的蒐證手段，取證之私人是否成立犯罪，過去文獻鮮少分析。本文所評釋之高等法院判決認為，為調查配偶通姦的被告利用衛星定位蒐集配偶之汽車位置資訊，係成立刑法第315條之1之無故竊錄罪，但不成立通訊保障及監察法（以下簡稱「通保法」）第24條之違法通訊監察罪，此見解在實務上獲得不少迴響。本文研究顯示，此判決否定違法通訊監察罪之結論固然正確，但其肯定無故竊錄罪之成立，係過於擴張「非公開活動」的概念射程，已牴觸類推適用禁止原則。未來實務應該正視，衛星定位追蹤適用新個資法之違法蒐集處理個資罪的可能性。

Global Position System (GPS) technology has been widely used in daily life. Both private individuals and government agencies take it as a tool to collect criminal evidence. In spite of its danger of infringing privacy, previous studies had rarely analyzed whether using GPS technology for private investigation purpose would constitute a crime. In a much-debated judgment by the Taiwan High Court, it held that for the purpose of investigating an adultery, a husband using GPS to position the location of his wife’s vehicle only violated Article 315-1 of Criminal Code, but did not violate Article 24 of Communication Security and Surveillance Act. This opinion has received a lot of responses and discussions among practitioners. This Article shows that the judgment has correctly denied the allegation that private conduct can constitute an unlawful communication surveillance under Communication Security and Surveillance Act. Noticeably, the judgment considered that the conduct still violates Article 315-1 of Criminal Code. But this decision unduly expanded the con-cept of “non-public activities”, which contravenes the principle of Nulla poena sine lege stricta. The practitioners should also pay attention, in the foreseeable future, to the effect that GPS tracking and its application in Article 41 of the new Personal Information Protection Act.