婚内强奸：是否犯罪化的选择
发布时间：2018-10-22 17:39
【摘要】：本文通过对中西方有关婚内强奸的政治经济条件、文化背景、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追问，并在此过程中证明了由于强大的传统文化等因素的制约，婚内强奸若贸然以强奸罪来处罚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。 本文亦以罪刑法定原则、刑法的谦抑性原则和犯罪构成的要件等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处，有违刑法的基本原则，并且会使刑法过度滥用。这不仅扩大了其打击面，而且刑法轻易介入其它法律可以很好解决的领域，不利于其它法律效用的应有发挥。当然，这些考查都是与政治经济等条件的中西方比较及形而上文化价值追问相勾连的。 本文第一章列举了婚内强奸现状，并对其历史进行追溯。第二章清理了有关婚内强奸的争论。第五章指出了我国目前可以有效利用的解决婚内强奸的办法与途径，强调道德规范、调解机制及《婚姻法》、《刑法》等的相关规定都可对婚内强奸进行处罚。为逐步跟上世界立法潮流，本文还提出了引入别居制度作为解决婚内强奸问题的制度准备。至于文化等方面的解决办法，就在本文的讨论范围之外了。
[Abstract]:By comparing the political and economic conditions, cultural background and institutional structure of marital rape between China and the West, this paper asks whether it is appropriate to criminalize marital rape in China at present. In this process, it has been proved that, because of the strong 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. The emergence of dissent: it also proves that when faced with the dilemma of women's individual freedom and stable marriage and family relations, we should give priority to social order rather than punishment for an illegal act. This paper also examines marital rape with the principle of legality, the principle of modesty of criminal law and the elements of criminal constitution, and analyzes the relevant provisions of Marriage Law and the judicial feasibility of marital rape in China. It is pointed out that the crime of rape in marriage is contrary to the basic principles of criminal law and will cause excessive abuse of criminal law. This not only broadens its scope of attack, but also involves the criminal law easily in areas where other laws can be solved easily, which is not conducive to the proper exertion of other legal effects. Of course, these examinations are connected with the comparison of political and economic conditions between China and the West and metaphysical cultural values. The first chapter enumerates the present situation of marital rape and traces its history. Chapter two clears the debate about marital rape. The fifth chapter points out the methods and approaches to solve marital rape which can be effectively used in our country at present, and emphasizes that the relevant provisions of moral standard, mediation mechanism, marriage law and criminal law can punish marital rape. In order to keep up with the trend of legislation in the world, this paper also puts forward the introduction of alternative residence system as the system preparation to solve the problem of marital rape. As for cultural and other aspects of the solution, is beyond the scope of this discussion.
【学位授予单位】：四川大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D924.3
本文编号：2287854
[Abstract]:By comparing the political and economic conditions, cultural background and institutional structure of marital rape between China and the West, this paper asks whether it is appropriate to criminalize marital rape in China at present. In this process, it has been proved that, because of the strong 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. The emergence of dissent: it also proves that when faced with the dilemma of women's individual freedom and stable marriage and family relations, we should give priority to social order rather than punishment for an illegal act. This paper also examines marital rape with the principle of legality, the principle of modesty of criminal law and the elements of criminal constitution, and analyzes the relevant provisions of Marriage Law and the judicial feasibility of marital rape in China. It is pointed out that the crime of rape in marriage is contrary to the basic principles of criminal law and will cause excessive abuse of criminal law. This not only broadens its scope of attack, but also involves the criminal law easily in areas where other laws can be solved easily, which is not conducive to the proper exertion of other legal effects. Of course, these examinations are connected with the comparison of political and economic conditions between China and the West and metaphysical cultural values. The first chapter enumerates the present situation of marital rape and traces its history. Chapter two clears the debate about marital rape. The fifth chapter points out the methods and approaches to solve marital rape which can be effectively used in our country at present, and emphasizes that the relevant provisions of moral standard, mediation mechanism, marriage law and criminal law can punish marital rape. In order to keep up with the trend of legislation in the world, this paper also puts forward the introduction of alternative residence system as the system preparation to solve the problem of marital rape. As for cultural and other aspects of the solution, is beyond the scope of this discussion.
【学位授予单位】：四川大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D924.3
【参考文献】
相关期刊论文 前5条
1 沈亮;丈夫可以对妻子构成强奸罪[J];法学;2000年03期
2 周永坤;婚内强奸罪的法理学分析[J];法学;2000年10期
3 陈兴良;罪刑法定的当代命运[J];法学研究;1996年02期
4 范忠信;中国传统法律文化的哲学基础[J];现代法学;1999年02期
5 廖万里,刘艺乒;论“婚内强奸”犯罪化应当缓行[J];云南大学学报(法学版);2002年01期
本文编号：2287854
本文链接：https://www.wllwen.com/falvlunwen/hyflw/2287854.html
