自2003年刑法分則編增訂第36章「妨害電腦使用罪章」以來，學界論著或實務適用上，無論就其規範效力或各罪要件之解釋，乃至於其與前此所局部增修而散落在他章各規定（如第220條、第339條之2、第339條之3）相互間之關連性，每每滋生諸多爭議。
始自本罪章立法理由對於電腦犯罪一詞之定義，以及本罪章所擬加保護之電腦安全法益，而至本章部分條文所保護者乃兼具有個人法益與社會法益之混合式立法等，皆屬學界與實務上所熱烈聚訟評價之對象。
本文認為主要核心爭議當在於其所保護法益之認定上，因其直接地左右了構成要件之範疇及其要件要素之解釋，如本文擬加研究之破壞電磁紀錄罪，該罪構成要件中之「致生損害於公眾或他人」一要素，往往因保護法益掌握或拿捏之差異，對於損害結果之認定標準自然亦隨之變動。如此一來，自不免牴觸法明確性原則之要求，而在合理預估法律效果俾能期待人民知法守法之依歸，勢將無所適從。
本文以刑法第359條破壞電磁紀錄罪為主要論述範圍，整理文獻及實務判決以進行實證研究。主要者係從保護法益面向之差異觀點，討論適用本條文時所滋生之問題，並輔以實務上之判決以為佐證及說明：最後再提出個人之看法與修法建議。期能提供日後於司法個案適用及立法研修時之建議與參考。
Ever since Chapter 36 “Offenses Against the Computer Security” was included into the Criminal Code of the Republic of China in 2003, in academic studies as well as in practice, there have been many controversies over its interpretation in terms of force and effect, elements of each offense, and its relation to relevant provisions in other chapters (ex. Article 220, Article 339-2, Article 339-3), which were the results of smaller-scale amendments in the past.
There has been an overwhelming number of debates, in the academic world and in practice, over how computer crime is defined in the reasons for adding the Chapter, what legal rights to computer security it aimed to protect, and how some of the articles protect both personal and social interests.
The hypothesis proposed by the researcher was that the legal interests the Chapter aimed to protect directly defines the scope and interpretation of the constituent elements. The crime of obtaining, deleting or altering another’s magnetic record was used as an example in this study. One element of the crime is that the perpetrator “causes injury to the public or others”. However, determination of the legal interests protected by the law often affects the interpretation of what constitutes an injury. This violates the principle of clarity and definiteness of law and makes it difficult to expect citizens to understand and abide by the law as they cannot reasonably anticipate its legal outcome.
This research focused on Article 359 of the Criminal Code, which penalizes the obtaining, deleting or altering of magnetic record. An empirical research was carried out based on literature review and court judgments. By looking at what legal interests were deemed to be protected, issues in applying Article 359 were identified and actual court judgments were used to provide validation and explanation. Final observations and suggestions for amendment to the Chapter were then made to serve as a reference for future application and research.
