论“婚内强奸”

发布时间：2018-04-29 06:31

本文选题：性自主权 + 丈夫豁免　；参考：《南京师范大学》2012年硕士论文

【摘要】：婚内强奸作为一个全球性、历史性的问题存在已久,无论是中世纪欧洲教会法创设的“别居制度”还是我国维新时期的“废缠足,兴女学”似乎都是浮光掠影。但伴随着妇女权益保护开始日益完善,女权主义运动不断蓬勃发展,笼罩在妇女头顶的阴霾终得缓慢消散,夫与妻之家庭地位的平等逐渐迈向性权利上的平等。于是被世界多国所普遍接受的“丈夫性豁免的正当性”得到人们的反思,尤其是20世纪70年代以来,婚内强奸构成犯罪与否的问题之立法与司法变迁,已经进入到了一个实质性阶段,并且已初步形成全球化趋势。在此趋势之下,各国日益攀升的婚内强奸问题渐露水面,其问题危害性的严重程度犹如冰山一角,继而衍生的各异问题,形形色色,也自是破竹而出。各国对婚内强奸的认定并非一蹴而就,而是伴随着女权主义运动经历了一个漫长的发展过程。在古代西方国家,通常认为丈夫享有“性豁免权”,从而阻却婚内强奸的犯罪性。就我国大陆而言,1989-1999年大规模进行的“性文明”调查表明：在夫妻性生活过程中,丈夫强迫妻子过性生活的占总调查总数的2.8%,受害妇女绝对人数有几百万之多。究竟婚内是否存在强奸?婚姻关系是否能成为丈夫性暴力的保护伞?婚姻关系能否成为阻却丈夫性暴力的违法性?“婚内”与“强奸”是否是一个矛盾体?“婚内强奸”犯罪化是否合乎刑法的基本观念?国内外学者各持己见。但是,就目前看废除婚内强奸中丈夫的豁免权、肯定婚内强奸的丈夫构成强奸罪,这已经是世界性的刑事立法潮流。正所谓“他山之石可以攻玉”,本文拟以比较法之视角,通过对中西方有关婚内强奸的文化背景、政治经济条件、制度构造等的历史演变的比较,对我国当前是否适合将婚内强奸犯罪化进行了一定的探究。在此过程中证明了由于强大的民族传统文化等因素的制约,婚内强奸若贸然以强奸罪来处罚定会造成刑法与社会大众之间产生隔阂,产生异己状态；同时也证明了当我们面临妇女个体自由和婚姻家庭关系稳定这一两难的选择时,更应当优先考虑社会秩序,而不是一个违法的行为应该受到什么样的惩罚。本文亦以犯罪构成的要件对婚内强奸进行了考查,结合对我国婚姻法有关规定和婚内强奸的司法可行性等方面的分析,指出在目前情况下将婚内强奸以强奸罪论处,宜将其设置于强奸罪之范畴内。
[Abstract]:Marital rape, as a global and historical problem, has existed for a long time. Whether it is the "alternative residence system" created by European church law in the Middle Ages or "foot-binding" in the reform period of our country, it seems that the revival of women's studies is a mere shadow. But with the improvement of the protection of women's rights and interests, the feminist movement continues to flourish, the haze enveloped in the head of women gradually dissipates slowly, and the equality of family status between husband and wife gradually moves towards the equality of sexual rights. Therefore, "the legitimacy of husband's sexual exemption", which is generally accepted by many countries in the world, has been reconsidered by people, especially since the 1970s, the legislative and judicial changes of the question whether marital rape constitutes a crime or not. Has entered a substantial stage, and has initially formed a trend of globalization. Under this trend, the growing problem of marital rape in various countries is coming to the surface, and the severity of the problem is like the tip of the iceberg. The recognition of marital rape is not accomplished overnight, but accompanied by a long process of development of feminist movement. In ancient Western countries, husbands were generally considered to enjoy "sexual immunity", thereby discouraging the criminal nature of marital rape. As far as the mainland of China is concerned, a large-scale "sexual civilization" survey conducted from 1989 to 1999 shows that in the process of husband and wife's sexual life, the husband forces his wife to have sex with his wife, accounting for 2.8% of the total number of surveys, and the absolute number of women victims is several million. Is there rape in marriage? Can marriage be a protective umbrella for husband's sexual violence? Can marriage become a violation of the husband's sexual violence? Is "marital" and "rape" a contradiction? Is the criminalization of "marital rape" consistent with the basic concept of criminal law? Scholars at home and abroad hold their own views. However, at present, abolishing the immunity of husband in marital rape and affirming that the husband of marital rape constitutes the crime of rape has become a worldwide trend of criminal legislation. This paper, from the perspective of comparative law, intends to compare the historical evolution of the cultural background, political and economic conditions and institutional structure of marital rape between China and the West. This paper explores whether it is appropriate to criminalize marital rape in China. In this process proved that because of the strong national traditional culture and other factors, marital rape if the crime of rape to punish will cause a gap between the criminal law and the general public, resulting in a different state; At the same time, it also proves that when we face the dilemma of women's individual freedom and stable marriage and family relations, we should give priority to social order rather than the punishment of an illegal act. This paper also examines marital rape in terms of the elements of crime, analyzes the relevant provisions of China's Marriage Law and the judicial feasibility of marital rape, and points out that marital rape is punished as the crime of rape under the present circumstances. It is advisable to set it within the scope of the crime of rape.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D924.3

【参考文献】