对家庭暴力的刑法思考
发布时间：2019-02-20 08:48
【摘要】： 家庭暴力是全球性的社会问题，它直接影响家庭关系的和睦安宁与社会的稳定和谐。在法学界，对家庭暴力的研究主要在民法、婚姻法领域进行，其实，家庭暴力与刑事法律密切联系，针对我国目前家庭暴力立法缺失的情况，对严重的家庭暴力行为进行刑法评价已经显得十分必要。同时，由于针对家庭暴力刑法方面的探讨比较薄弱，从刑法角度对家庭暴力问题进行审视与思考，对于规制家庭暴力犯罪、有效预防和防治家庭暴力具有重大意义。形成对家庭暴力的刑法认识，构建尽可能完善的有关家庭暴力刑法方面的理论，对于指导刑事司法实践同样具有重要意义。 本文主要从五个部分对家庭暴力进行刑法解读： 首先，明确家庭暴力中“家庭”的内涵。笔者认为，刑法中“家庭”的范围不宜作扩大解释，，应当比民事法律中“家庭”的含义狭窄，指具有亲属关系并且处于共同生活的状态。 其次，明确家庭暴力中“暴力”的内涵。家庭暴力是刑法中暴力的一种，比照刑法中暴力的表现形式、程度范围、行为方式、作用对象四个方面，笔者认为家庭暴力中“暴力”并不完全等同于刑法中“暴力”，家庭暴力中的“暴力”内涵小于刑法中“暴力”的内涵，其一，家庭暴力中“暴力”大多表现为暴力行为本身构成犯罪；其二，家庭暴力中“暴力”的上限是故意杀人行为，下限则高于刑法中其他犯罪的暴力标准，要求达到轻伤以上的程度；其三，家庭暴力中“暴力”仅指现实暴力；其四，家庭暴力中“暴力”不包括财物。此外，刑法中的家庭暴力排除冷暴力，并指出所有的家庭暴力都是故意犯罪。 再次，家庭暴力中的共同犯罪问题。家庭暴力中共同犯罪特殊形式为血亲群体对抗姻亲个人，在司法实践中并不是所有的共同犯罪人都要追究刑事责任，笔者认为，最合理的解释是“期待可能性”理论，法律不能期待共同生活的家庭成员对于同一个家庭成员的违法犯罪行为做出制止举动。而在家庭暴力片面共犯中，对其刑事责任的追究虽没有法律的明文规定，但从价值层面上应当予以肯定，这涉及到罪刑法定原则从形式主义到价值主义的转变。 再次，家庭暴力的量刑问题。对家庭暴力的量刑应当区别施暴者与恶逆变后的受害者，并考虑不同的情节因素。笔者认为，对施暴者应当加重处罚。对受害者不堪忍受家庭暴力实施伤害行为应当注意划分正当防卫的界限，对属于正当防卫的行为不追究刑事责任，而对属于故意伤害行为的一般应予以从宽处理。 最后，在针对目前刑法关于家庭暴力犯罪存在的缺陷与不足的基础上，笔者建议在刑法中增设专门的家庭暴力罪，作为一个类罪并列于刑法分则的其他十类犯罪，以期达到专门规制、有效防治家庭暴力的法律效果。
[Abstract]:Domestic violence is a global social problem, which directly affects the harmony of family relations and social stability and harmony. In the field of law, the research on domestic violence is mainly carried out in the fields of civil law and marriage law. In fact, domestic violence is closely related to criminal law, aiming at the lack of domestic violence legislation in our country at present. It is necessary to evaluate the serious domestic violence in criminal law. At the same time, because of the weak discussion on the criminal law of domestic violence, it is of great significance to examine and think about the problem of domestic violence from the angle of criminal law, to regulate the crime of domestic violence and to prevent and prevent it effectively. It is also of great significance for guiding the practice of criminal justice to form a criminal law understanding of domestic violence and to construct the theory of domestic violence criminal law as perfect as possible. This paper interprets domestic violence from five parts. Firstly, it clarifies the connotation of "family" in domestic violence. The author thinks that the scope of "family" in criminal law should not be extended and should be narrower than the meaning of "family" in civil law, which refers to the state of having kinship and living together. Secondly, clarify the connotation of "violence" in domestic violence. Domestic violence is a kind of violence in criminal law. Comparing with four aspects of violence in criminal law, the author thinks that "violence" in domestic violence is not equal to "violence" in criminal law. The connotation of "violence" in domestic violence is smaller than that of "violence" in criminal law. First, most of "violence" in domestic violence is manifested as a crime of violence itself; Second, the upper limit of "violence" in domestic violence is intentional homicide, and the lower limit is higher than the violent standard of other crimes in criminal law. Fourth, domestic violence in the "violence" does not include property. In addition, domestic violence in criminal law excludes cold violence and states that all domestic violence is intentional. Thirdly, the problem of joint crime in domestic violence. The special form of joint crime in domestic violence is blood relatives against in-laws. In judicial practice, not all joint offenders should be investigated for criminal responsibility. In my opinion, the most reasonable explanation is the theory of "expectation possibility". The law cannot expect a family member living together to stop the crime committed by the same family member. In the one-sided accomplice of domestic violence, the investigation of its criminal responsibility has no legal provisions, but it should be affirmed from the value level, which involves the transformation of the principle of legality from formalism to valualism. Thirdly, the sentencing of domestic violence. The sentencing of domestic violence should distinguish between the perpetrator and the victim, and consider different circumstances. I believe that the perpetrators of violence should be aggravated penalties. We should pay attention to dividing the boundary of justifiable defense to the victims who can't bear the domestic violence, and not investigate the criminal responsibility for the acts that belong to the legitimate defense, but should give lenient treatment to those who belong to the intentional injury behavior. Finally, on the basis of the defects and shortcomings of the present criminal law on domestic violence, the author suggests that a special crime of domestic violence should be added to the criminal law, as a kind of crime and listed in the other ten kinds of crimes in the special provisions of the criminal law. In order to achieve special regulation, effective prevention and treatment of domestic violence legal effect.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D924
本文编号：2427021
[Abstract]:Domestic violence is a global social problem, which directly affects the harmony of family relations and social stability and harmony. In the field of law, the research on domestic violence is mainly carried out in the fields of civil law and marriage law. In fact, domestic violence is closely related to criminal law, aiming at the lack of domestic violence legislation in our country at present. It is necessary to evaluate the serious domestic violence in criminal law. At the same time, because of the weak discussion on the criminal law of domestic violence, it is of great significance to examine and think about the problem of domestic violence from the angle of criminal law, to regulate the crime of domestic violence and to prevent and prevent it effectively. It is also of great significance for guiding the practice of criminal justice to form a criminal law understanding of domestic violence and to construct the theory of domestic violence criminal law as perfect as possible. This paper interprets domestic violence from five parts. Firstly, it clarifies the connotation of "family" in domestic violence. The author thinks that the scope of "family" in criminal law should not be extended and should be narrower than the meaning of "family" in civil law, which refers to the state of having kinship and living together. Secondly, clarify the connotation of "violence" in domestic violence. Domestic violence is a kind of violence in criminal law. Comparing with four aspects of violence in criminal law, the author thinks that "violence" in domestic violence is not equal to "violence" in criminal law. The connotation of "violence" in domestic violence is smaller than that of "violence" in criminal law. First, most of "violence" in domestic violence is manifested as a crime of violence itself; Second, the upper limit of "violence" in domestic violence is intentional homicide, and the lower limit is higher than the violent standard of other crimes in criminal law. Fourth, domestic violence in the "violence" does not include property. In addition, domestic violence in criminal law excludes cold violence and states that all domestic violence is intentional. Thirdly, the problem of joint crime in domestic violence. The special form of joint crime in domestic violence is blood relatives against in-laws. In judicial practice, not all joint offenders should be investigated for criminal responsibility. In my opinion, the most reasonable explanation is the theory of "expectation possibility". The law cannot expect a family member living together to stop the crime committed by the same family member. In the one-sided accomplice of domestic violence, the investigation of its criminal responsibility has no legal provisions, but it should be affirmed from the value level, which involves the transformation of the principle of legality from formalism to valualism. Thirdly, the sentencing of domestic violence. The sentencing of domestic violence should distinguish between the perpetrator and the victim, and consider different circumstances. I believe that the perpetrators of violence should be aggravated penalties. We should pay attention to dividing the boundary of justifiable defense to the victims who can't bear the domestic violence, and not investigate the criminal responsibility for the acts that belong to the legitimate defense, but should give lenient treatment to those who belong to the intentional injury behavior. Finally, on the basis of the defects and shortcomings of the present criminal law on domestic violence, the author suggests that a special crime of domestic violence should be added to the criminal law, as a kind of crime and listed in the other ten kinds of crimes in the special provisions of the criminal law. In order to achieve special regulation, effective prevention and treatment of domestic violence legal effect.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D924
【引证文献】
相关期刊论文 前1条
1 宋哲雯;饶继姬;;反家庭暴力的刑法思考[J];法制与社会;2011年32期
本文编号：2427021
本文链接：https://www.wllwen.com/falvlunwen/hyflw/2427021.html
