今日台灣夫妻的價值觀多元化自然成形，社會上性關係多樣豐富，而隨著世界潮流趨勢通姦罪終將除罪化。在台灣之通姦罪由於配偶通常基於理性顧及家庭小孩因而撤回對於通姦配偶之告訴，通姦罪之定罪率太低，不具刑法嚇阻作用，不符合司法成本效益，同時基於性自主權是配偶的基本權，通姦罪是否符合比例原則？是否合憲？本文進行適性探討。因為通姦罪並無具體的保護法益存在，刑法規範缺乏適當性、必要性及公平正義，在法律需要合憲性的原則下，通姦罪必將除罪化。本文建議以民法侵權賠償取代刑法之通姦罪懲罰，修法提高民法對於被害配偶之瞻養費、財產分配請求、精神損害賠償等之賠償額度，以及制定法之強制性，以民法之高額賠償一樣可以達到立法目的，保護婚姻制度。

This article studies the decriminalization of adultery based on the Economic Analysis of Law. Today, with the space conversion, the diversification of Taiwan couple’s values is naturally forming. And since the sexual relations are rich and diverse in the community, the adultery will eventually be decriminalized with the trends. Since one of the spouses usually withdraws the telling for another spouse according to the conception of bounded rationality, the low conviction rate for adultery does not have a deterrent effect of penalties and the telling is not cost-effective. Simultaneously, the sexual autonomy, is a fundamental right for any spouse. Thus, does adultery conform to the principle of proportionality? Is it constitutionality? In this paper, this issue will be discussed appropriately in the adultery. Because no specific protection of legal interests exists, the penalty specification lacks for appropriateness, necessity and justice, under the principle of the constitutionality of the law, decriminalization of adultery is necessary. In this article, we suggest to replace the adultery of criminal law with civil law tort, to amend the law to increase the compensation amount of the alimony for the victim spouse, for property allocation request, for the Compensation for mental damage, for the necessity of the mandatory of the civil law. Higher compensation can achieve the same legislative purpose to protect the institution of marriage. This article will focus on the discussion of the conditions applied in the context of Right of Preemption and its related issues, as well as the analysis of related theories and in practice.