组织卖淫罪相关问题研究

发布时间：2018-03-02 19:42

本文选题：卖淫　切入点：组织卖淫　出处：《辽宁大学》2017年硕士论文　论文类型：学位论文

【摘要】：组织卖淫作为一种淫媒类犯罪,它所带来的危害性主要表现在对社会管理秩序的扰乱以及对社会风尚的侵蚀。刑法对该种行为的打击更多的是在于其“有组织性”的卖淫,它比普通的卖淫所带来的社会危害性要大的多。实践中有组织卖淫的情形也十分复杂,正是基于此,本文从以下几个部分对实践中可能存在的一些问题作出论述。第一部分,该部分重点对组织卖淫罪中卖淫的概念以及卖淫的主体和对象进行了梳理,这是构成本罪必须厘清的问题,因为现在的性交易方式开始呈现多种多样的形态,如鸡奸、口淫、手淫、波推等等,这些行为方式从立法原意以及对社会的危害性上看与性器官接触这样方式的卖淫并没有本质上的区别,均是广义上的卖淫,对组织实施这些行为的也应当认定为组织卖淫罪。第二部分,主要论述的问题是组织卖淫罪与相关罪名之间的关系,重点论述了组织卖淫罪与强迫卖淫罪之间、协助组织卖淫罪之间的关系,其中对组织卖淫罪中的“组织”的理解是该部分重点,“组织”行为中不应当包含“强迫”手段,否则组织卖淫罪的外延将包含强迫卖淫罪,这与现行立法本意好似不相符的。其次对组织卖淫罪与协助组织卖淫罪的罪间界限问题作了充分的论证,首先论证的是组织卖淫罪中没有主、从犯的区分。从本质上看,协助组织卖淫的行为构成组织卖淫的从犯,只不过刑法将这种帮助行为单独规定为一罪,这突出体现了刑法对该种行为的社会危害性的重视,且刑法做这样的规定在理论上是不存在障碍的。因此应当从主、从犯的角度划分出组织卖淫罪与协助组织卖淫罪的罪间界限。接着该部分还具体论述了组织卖淫罪与容留卖淫罪的罪间界限问题。第三部分,该部分主要论述组织卖淫罪的犯罪形态问题。首先,组织卖淫罪的既遂标准应当以“组织行为”为基准,不应将是否实施了“卖淫行为”作为判断本罪的既遂,但是组织行为完成应当考虑它的社会意义,即以能够向不特定人提供卖淫活动作为既遂标准,而不是单纯的以手段行为的实施完毕作为既遂标准。另外,本文论述了组织卖淫罪的罪数问题,基于本文所持观点,因为组织卖淫罪当中的“组织行为”并不包含“强迫行为”,因此所谓的以强制手段实施的组织卖淫行为,不应以牵连犯对待,应当认为符合数个犯罪构成,构成数罪。
[Abstract]:Organization prostitution, as a kind of pimp crime, brings harmfulness mainly in disturbing the social management order and eroding the social fashion. The criminal law strikes this kind of behavior more in its "organized" prostitution. It is much more harmful to society than ordinary prostitution. The situation of organized prostitution in practice is also very complex. Based on this, this paper discusses some possible problems in practice from the following parts. This part focuses on the concept of prostitution in the crime of organizing prostitution, as well as the subject and object of prostitution. This is a problem that must be clarified as the crime is constituted, because the current ways of sex trade are beginning to take on a variety of forms, such as sodomy and adultery. Masturbation, push-ups, etc., in terms of legislative intent and harmfulness to society, there is no essential difference between prostitution and sexual organ contact, all of which are broadly defined as prostitution. The second part mainly deals with the relationship between the crime of organizing prostitution and the related charges, with the emphasis on the relationship between the crime of organizing prostitution and the crime of forced prostitution. The relationship between the offences of assisting the organization of prostitution, in which the understanding of the "organization" in the crime of organizing prostitution is the focus of this part, and that the conduct of the "organization" should not contain the means of "coercion", otherwise the extension of the crime of organizing prostitution would include the crime of forced prostitution, This seems to be inconsistent with the original intention of the current legislation. Secondly, it makes a full argument on the boundary between the crime of organizing prostitution and the crime of assisting the organization of prostitution. The first argument is that there is no distinction between the principal and the accomplice in the crime of organizing prostitution. Aiding the organization of prostitution constitutes an accessory to the organization of prostitution, except that the criminal law makes this aiding act a separate crime, which highlights the importance that the criminal law attaches to the social harmfulness of the act. And the criminal law makes such a provision in theory there are no obstacles. From the angle of accomplice, the author distinguishes the boundary between the crime of organizing prostitution and the crime of assisting in organizing prostitution, and then discusses the problem of the boundary between the crime of organizing prostitution and the crime of sheltering prostitution. The third part discusses the problem of the boundary between the crime of organizing prostitution and the crime of sheltering prostitution. First of all, the standard of accomplishing the crime of organizing prostitution should be based on the "organizational act", and should not judge the accomplishment of the crime by whether or not the "act of prostitution" has been carried out. However, the completion of organizational behavior should take into account its social significance, that is, to be able to provide prostitution to a non-specific person as the criterion of accomplishment, rather than simply using the completion of the implementation of the act of means as the criterion of accomplishment. In addition, This paper discusses the problem of the number of crimes of organizing prostitution, based on the viewpoint of this paper, because the "organizational act" in the crime of organizing prostitution does not include "forced act", so the so-called "organized prostitution" is carried out by coercive means. Should not be treated as implicated criminals, should be considered consistent with a number of crimes constitute, constitute a number of crimes.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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