本論文乃處理通姦罪之相關問題，其中有法理上的，文化上的，甚至宗教上的角度。但本國乃一法治國家，人民的一切行為，最重要的依據乃是法律，故法律對通姦之理解，乃整個討論之最關係處。而以刑法論處通姦，在各國均有其長遠之歷史，而現今人權高漲，人之身體上之權益，即性行為之自由，是否受一紙婚約所限制，不無討論之餘地。況且以法論法，《刑法》239條之通姦罪，是否有違本國《憲法》第23條之比例原則，其實不無疑問。而為了加強本論之論證，在討論中加入了各國法律對通姦行為之看法，在文化宗教方面，亦比較了哲學對此的不同看法。本文並列舉法院判決實證案例二則，對於通姦罪確定判決有罪、無罪結果作分析比較，以為婚外性行為除罪化的參考。最後本文研究認為用刑法來規範通婚外性行為，無助於維持婚姻與家庭，可予以從刑法上除罪化，使通姦行為回歸民事救濟途徑，作為損害賠償請求權乃至於裁判離婚之基礎。 In this paper I would like to discuss the problems of adultery, the ways of discussion are from the viewpoint of theory of laws, of culture and of religion. Taiwan is a country ruled by laws, therefore the most important ground to judge our behavior is nothing but the laws and the understanding about adultery is the key point for my discussion. There is a long history in nations to punish the behavior of adultery by criminal laws, but today the situation is changed that the human right of body runs high – it causes the problem whether the right of body, that is, the freedom of sexual behavior, should be restricted by a contract of marriage. On the other hand the crime of adultery presented in the 239 of 《criminal laws》 may be against the 23 of 《Constitution》 which presents the principle of proportionality, that is the most serious diffculty for the 239 of 《criminal laws》. In order to make the argument of my paper clear, I try to show the viewpoints of different nations about the crime of adultery, of culture, philosophy and religion. The judgments from court are also important to justify what the problems are, according to this reason I give two examples, the one is for the guilty of adultery and the two against it. This examples can be compared each other in order to have more understandings about the possibility of decriminalization of adultery. Finally I hold the point that it is not useful to hold the marriage by the crime of adultery, and it is better to be free from the crime of adultery and to solve the problem of adultery by the way of civil code in order to find the foundation of the right to ask the reparation of damage and even the foundation to judge the divorce.
