家庭暴力犯罪的刑法学思考
发布时间：2018-11-03 16:08
【摘要】： 家庭是生命的摇篮,是社会的细胞,是人类生存和发展的重要组织形式。在健康、和谐的家庭中我们可以体味到亲情、关怀、理解与包容。然而家庭暴力的出现使家庭远离了亲情与温暖,滋生了矛盾与危机,导致了家庭的裂变,更曾出现过血的惨剧,直接影响了家庭关系的和睦安宁与社会的和谐稳定。20世纪70年代,家庭暴力问题已经成为西方国家关注的热点,直到20世纪90年代我国才开始对家庭暴力问题进行研究,但主要集中在社会学、心理学和医学等学科,在法学界,研究的重点也多集中于民法、婚姻法等领域。其实,家庭暴力与刑事法律有着密切的联系,对严重的构成犯罪的家庭暴力行为理应纳入刑法学的视野进行评价。但目前我国对家庭暴力犯罪存在着立法上的缺失,对家庭暴力犯罪的研究与探讨也比较薄弱,因此,有必要从刑法的角度对家庭暴力犯罪进行审视与思考,这对于规制家庭暴力犯罪,完善家庭暴力刑法理论以及指导司法实践都具有十分重要的意义。 本文在借鉴国内外已有研究成果的基础上,结合我国的国情,分三个部分对家庭暴力犯罪进行刑法解读: 第一部分为家庭暴力犯罪概述,主要介绍了家庭暴力以及家庭暴力犯罪的一些基本问题。此部分结合联合国对家庭暴力的有关规定,援引海外国家和地区以及我国大陆地区的有关法律规定及理论界的不同观点对家庭暴力的含义做出诠释。在此基础上对家庭暴力犯罪的概念进行了界定,并对现行刑法中与家庭暴力有关的几个犯罪进行了比较研究,最后对目前我国大陆地区家庭暴力犯罪的现状与特征进行了概括和分析。 第二部分为对家庭暴力犯罪若干疑难问题的思考,共分三节。此部分分别对家庭暴力犯罪中的“暴力”在刑法语境下的正确理解问题、家庭暴力中的“暴力”构成犯罪的标准问题、家庭“冷暴力”是否应当入罪、“婚内强奸”行为是否构成强奸罪以及对家庭暴力犯罪中的施暴者和“以暴制暴”者的量刑原则问题进行了探讨与研究,并提出了笔者自己的观点。 第三部分为完善家庭暴力犯罪刑事立法的思考。此部分笔者对国外家庭暴力犯罪的立法情况进行了概述,针对目前刑事立法中关于家庭暴力犯罪的规定存在的缺陷与不足,结合我们国家的实际情况,试提出完善刑事实体法的思路,以期达到专门规制家庭暴力犯罪、有效防治家庭暴力的法律效果。 综合全文,本文主要采用实证与思辨相结合、定性与定量分析相结合的研究思路,综合运用了比较研究法、历史研究法、案例分析法等刑法学研究方法,以此为辅助工具,希望能更好地剖析家庭暴力犯罪的深层问题,从而为我国家庭暴力犯罪的立法和实践提供有价值的参考。
[Abstract]:Family is the cradle of life, the cell of society and the important organizational form of human existence and development. In a healthy, harmonious family we can appreciate affection, care, understanding and tolerance. However, the emergence of domestic violence has kept the family away from family affection and warmth, created contradictions and crises, led to the fission of the family, and has resulted in bloody tragedies. In the 1970s, domestic violence has become a hot issue in western countries. It was not until the 1990s that our country began to study the problem of domestic violence. But it mainly focuses on sociology, psychology and medicine. In the field of law, the research focuses on civil law, marriage law and so on. In fact, domestic violence is closely related to criminal law. However, there is a lack of legislation on the crime of domestic violence in our country at present, and the research and discussion of the crime of domestic violence is also relatively weak. Therefore, it is necessary to examine and think about the crime of domestic violence from the angle of criminal law. It is of great significance to regulate the crime of domestic violence, perfect the theory of criminal law of domestic violence and guide judicial practice. On the basis of the domestic and foreign existing research results, this article combines the national conditions of our country, divides into three parts carries on the criminal law interpretation to the domestic violence crime: the first part is the outline of the domestic violence crime, It mainly introduces some basic problems of domestic violence and the crime of domestic violence. Combined with the relevant regulations of the United Nations on domestic violence, this part invokes the relevant laws and regulations of overseas countries and regions as well as the different views of the theoretical circle to explain the meaning of domestic violence. On this basis, the concept of domestic violence crime is defined, and several crimes related to domestic violence in the current criminal law are comparatively studied. Finally, the present situation and characteristics of domestic violence crime in mainland China are summarized and analyzed. The second part is divided into three sections. In this part, the correct understanding of "violence" in the context of criminal law, the standard of "violence" in domestic violence, and whether "cold violence" in family should be criminalized are discussed in this part. Whether the act of "marital rape" constitutes the crime of rape and the sentencing principles of the perpetrators of domestic violence and the perpetrators of violence by violence are discussed and studied, and the author puts forward his own views. The third part is to perfect the criminal legislation of domestic violence crime. In this part, the author summarizes the legislative situation of domestic violence crime in foreign countries, aiming at the defects and shortcomings of the current criminal legislation on domestic violence crime, combined with the actual situation of our country. This paper puts forward the idea of perfecting the criminal substantive law in order to achieve the legal effect of regulating the crime of domestic violence and effectively preventing and controlling domestic violence. Synthesizing the full text, this paper mainly adopts the research thought of combining empirical and speculative, qualitative and quantitative analysis, and synthetically uses comparative research, historical research, case analysis and other criminal law research methods, which is used as a supplementary tool. It is hoped that the deep problems of domestic violence crime can be better analyzed, thus providing a valuable reference for the legislation and practice of domestic violence crime in our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D924.3
本文编号：2308273
[Abstract]:Family is the cradle of life, the cell of society and the important organizational form of human existence and development. In a healthy, harmonious family we can appreciate affection, care, understanding and tolerance. However, the emergence of domestic violence has kept the family away from family affection and warmth, created contradictions and crises, led to the fission of the family, and has resulted in bloody tragedies. In the 1970s, domestic violence has become a hot issue in western countries. It was not until the 1990s that our country began to study the problem of domestic violence. But it mainly focuses on sociology, psychology and medicine. In the field of law, the research focuses on civil law, marriage law and so on. In fact, domestic violence is closely related to criminal law. However, there is a lack of legislation on the crime of domestic violence in our country at present, and the research and discussion of the crime of domestic violence is also relatively weak. Therefore, it is necessary to examine and think about the crime of domestic violence from the angle of criminal law. It is of great significance to regulate the crime of domestic violence, perfect the theory of criminal law of domestic violence and guide judicial practice. On the basis of the domestic and foreign existing research results, this article combines the national conditions of our country, divides into three parts carries on the criminal law interpretation to the domestic violence crime: the first part is the outline of the domestic violence crime, It mainly introduces some basic problems of domestic violence and the crime of domestic violence. Combined with the relevant regulations of the United Nations on domestic violence, this part invokes the relevant laws and regulations of overseas countries and regions as well as the different views of the theoretical circle to explain the meaning of domestic violence. On this basis, the concept of domestic violence crime is defined, and several crimes related to domestic violence in the current criminal law are comparatively studied. Finally, the present situation and characteristics of domestic violence crime in mainland China are summarized and analyzed. The second part is divided into three sections. In this part, the correct understanding of "violence" in the context of criminal law, the standard of "violence" in domestic violence, and whether "cold violence" in family should be criminalized are discussed in this part. Whether the act of "marital rape" constitutes the crime of rape and the sentencing principles of the perpetrators of domestic violence and the perpetrators of violence by violence are discussed and studied, and the author puts forward his own views. The third part is to perfect the criminal legislation of domestic violence crime. In this part, the author summarizes the legislative situation of domestic violence crime in foreign countries, aiming at the defects and shortcomings of the current criminal legislation on domestic violence crime, combined with the actual situation of our country. This paper puts forward the idea of perfecting the criminal substantive law in order to achieve the legal effect of regulating the crime of domestic violence and effectively preventing and controlling domestic violence. Synthesizing the full text, this paper mainly adopts the research thought of combining empirical and speculative, qualitative and quantitative analysis, and synthetically uses comparative research, historical research, case analysis and other criminal law research methods, which is used as a supplementary tool. It is hoped that the deep problems of domestic violence crime can be better analyzed, thus providing a valuable reference for the legislation and practice of domestic violence crime in our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D924.3
【引证文献】
相关期刊论文 前1条
1 夏旭日;;关于《家庭暴力防治法》的立法考察——以全球性的视角[J];泰山学院学报;2013年01期
相关硕士学位论文 前2条
1 肖锋;论家庭暴力的刑法规制[D];郑州大学;2010年
2 庄立伟;家庭暴力犯罪中受害人的诉讼权利保护研究[D];中国政法大学;2010年
，本文编号：2308273
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