婚内强奸入罪问题研究

发布时间：2018-12-07 08:26

【摘要】：婚内强奸是种客观存在的家庭暴力行为，其暴力程度不亚于一般的强奸行为，无论从身体上还是感情上对妇女的伤害都超过一般的家庭暴力。近几年家庭暴力已经慢慢的被社会所重视，对于家庭暴力的施暴者在道德上给予了谴责，在法律上也让其受到了应有的惩罚。但是由于中国传统思想的束缚以及家庭夫妻关系的隐私性的问题让婚内强奸一直都处在暗箱中，受害人往往得不到应有的法律保护。由于我国现行法律对于婚内强奸是否入罪没有给出一个明确的法律界定，所以让司法部门在处理此类案件时也显的无能为力。随着人权保护思想的深入，妇女婚内的各项权益的保护也越来越被重视。婚内强奸入罪问题近几年来在社会各界也被提了出来，是否构成犯罪在法学界和司法界都是一个非常敏感的问题。对于是否构成犯罪，在我国刑法界基本形成了否定说，肯定说和折中说三大学说。否定说为我国刑法学界的主流学说，其认为婚内强奸有别于一般的强奸行为，其发生在夫妻关系存续期间，而婚姻对强迫性性行为有一定豁免作用，丈夫强奸妻子不能也不应该认定为强奸罪。肯定说却认为婚内强奸构成犯罪，婚内强奸入罪并不违反我国刑法规定的罪刑法定原则，所以婚内强奸构成强奸罪。否定说完全忽视妇女在婚内拥有的合法权益，是对妇女权利的漠视和践踏。而肯定说也完全没有考虑到婚内关系的存在，将妻子的性自主权过于绝对化。两种学说都不利于保护妇女和家庭和谐。随着时代的进步以及世界各国法学界和司法界对于婚内强奸的重新界定，折中说也就随之产生了。折中说实质上也是一种否定说，是一种带有限制性的否定说。该说认为婚内强奸并非在任何情况下都构成婚内强奸罪，它只能在某些特定的情况下才能有限成立。婚内强奸构成犯罪除满足犯罪构成四个基本要件外，还必须满足以下两个条件：第一、行为人与受害人之间必须具有合法的婚姻关系；第二、对婚内强奸罪的认定应限定在妻子有合法理由可免除同居义务的条件内。婚内强奸与普通强奸相比，它们有相似的法律特征，，但它们之间又存在较大的区别，在认定婚内强奸罪时，除考虑婚内强奸行为发生的目的、动机外，更应着重考虑该行为的社会危害性、主体的特殊性等方面的因素。折中说将婚内强奸从普通强奸中分离开来，有利于打击犯罪和保护妇女权益，同时也起到了促进家庭和谐的作用。婚内强奸在我国还属于一个比较新生的概念，由于我国在立法上没有对婚内强奸行为是否构成犯罪做出明确的规定，所以当司法部门面对婚内强奸案件的时候往往对于相同的案情却做出完全不同的判决。没有一个明确的立法往往放纵了犯罪分子，造成了司法的不公正。对于婚内强奸行为的立法就凸显的特别重要。婚内强奸是否构成犯罪，国外很多国家都研究的比较早，而且在立法上也有所突破。在研究了世界主要发达国家对于婚内强奸是否入罪的理论基础上,借鉴了其今年来这些国家在立法上的突破。提出如下立法建议：在刑法中独立设立婚内强奸罪；将婚内强奸罪设立为自诉案件，不告不理；引入调解制度和民事侵权制度；对婚内强奸罪的处罚适用宽严相济原则等。相信随着社会的进步，人们观念的转变，理论研究的发展，妇女维权意识的增强以及立法的日趋完善，婚内强奸罪必然将在法律领域占一席之地。因此，研究婚内强奸入罪问题有着重要的理论意义和现实意义。
[Abstract]:Marital rape is an objective domestic violence, and its level of violence is no less than that of general rape, both physically and emotionally, more than the general domestic violence. In recent years, domestic violence has slowly been attached to the attention of the society, and the perpetrators of domestic violence have been morally condemned and have been punished in law. However, because of the restriction of Chinese traditional thought and the privacy of family relationship, marital rape is always in the dark box, and the victim is often not protected by the law. As the current law in our country does not give a clear legal definition for marital rape, there is nothing to do with the justice sector in dealing with such cases. With the development of the thought of human rights protection, the protection of the rights and interests of women's marriage is also paid more and more attention. In recent years, the crime of marital rape has been raised in all sectors of the community, and whether it constitutes a crime is a very sensitive issue in the legal and judicial circles. As to whether the crime is a crime, it has formed a negative theory in the criminal law circle of our country, and the three universities have to say and compromise. The author denies that marital rape is different from the general rape, and that the marital rape is different from the general rape, and the marriage has a certain immunity to the forced sexual behavior, and the husband's rape wife cannot and should not be identified as a rape. The crime of marital rape constitutes a crime, and marital rape constitutes a crime, and marital rape is not a violation of the statutory principle of the crime and punishment stipulated in the criminal law of our country, so marital rape constitutes a rape. The denial of the lawful rights and interests of women in the area of marriage is a disregard for the rights of women and a view to the violation of the rights of women. Step. And it must be said that the existence of a marital relationship is not fully taken into account, and that the autonomy of the wife is too absolute The two theories are not conducive to the protection of women and the family and With the progress of the times and the redefinition of marital rape in the field of law and the judicial circle of the world, the trade-off of marital rape is also produced. The compromise is, in essence, a negative and a negative, restrictive, negative. It is said that marital rape is not, in any case, a marital rape, which can only be limited in certain circumstances. In addition to the four basic elements of the crime, the marital rape must meet the following two conditions: first, the perpetrator and the victim must have a legal relationship; and 2. The identification of marital rape shall be limited to the conditions in which the wife has a legal reason to be exempted from the obligation of cohabitation In comparison with ordinary rape, marital rape has similar legal characteristics, but there is a large difference between them. In the case of marital rape, it is more important to consider the social harm of the act, in addition to the purpose and motivation of the occurrence of marital rape. due to the particularity of the subject, etc. The compromise is that marital rape is separated from ordinary rape and is conducive to the fight against crime and the protection of women's rights, as well as for the promotion of family harmony It is also a relatively new concept in our country that marital rape is a relatively new concept in our country. Since there is no explicit provision on whether marital rape is a crime in our country, the case of marital rape is often completely different when the judiciary is facing marital rape. There is no clear legislation that tends to indulge in criminals, resulting in the administration of justice. Unfair. The legislation on marital rape is highlighted. Don't be important. If marital rape is a crime, many foreign countries have studied earlier, and there are also legislation Based on the study of the theory of the crime of marital rape in the world's major developed countries, this year, this year's national legislation The following legislative proposals are put forward: the establishment of the marital rape in the criminal law; the establishment of the marital rape as a case of self-prosecution; the introduction of the mediation system and the civil tort system; and the application of the punishment for marital rape to a wide and tight phase. It is believed that with the progress of the society, the change of people's concept, the development of the theory research, the enhancement of the consciousness of women's rights protection and the perfection of the legislation, the marital rape must account for one in the legal field. Therefore, it is of great theoretical significance and present to study the crime of marital rape.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D924.3

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