幼女性权利的刑法保护争议问题研究
发布时间：2018-10-24 19:19
【摘要】：刑法中对幼女性权利的保护是衡量一国对未成年人保护水平的重要标准。面对近年来我国异起的性侵害幼女案件,以及对性侵害幼女刑事法律的诸多争议,正确解释现行法及对现行法律提出完善建议,是当前保护幼女权益的必然要求。本文分为三个部分,第一部分主要介绍我国刑事法律对幼女性权利保护的发展与演变过程,以及对“幼女”和幼女“性权利”两个概念的界定。从立法上,我国针对幼女性权利刑事保护的立法日趋完善、明确。我国幼女为未满14周岁的女性,幼女“性权利”区别于其他女性“性权利",它主要强调幼女的性隐私权、性教育权、性健康权、性救济权等,不包括性承诺权。第二部分阐述了我国幼女性权利刑法保护中存在四个主要争议：如何界定“幼女”；在归责原则上适用严格责任抑或主客观相一致原则,以及由此引发的成立性侵幼女的犯罪是否要求“明知”受害人为幼女的争议；奸淫幼女行为应认定为强奸罪抑或奸淫幼女罪的争议；嫖宿幼女罪是否应当废除的争议。第三部分在第一、二部分的基础上对争议问题及其它问题做出相应观点陈述。本文认为针对性侵害幼女犯罪应当采用主客观相一致原则,成立犯罪需要行为人明知对方为幼女,有证据证明确实不知则不为罪；奸淫幼女犯罪的犯罪客体和既遂标准不同于普通强奸罪,决定了奸淫幼女行为应独立成罪；嫖宿幼女罪的设立错误地区分了良家与不良幼女,理应废除。此外,从古今中外对幼女的界定来看,我国幼女的年龄过低,将《刑法》中的幼女年龄提高至未满18周岁,不但符合国际法规定,也有利于提升我国对幼女性权利的保护水平。
[Abstract]:The protection of the sexual rights of young girls in criminal law is an important standard to measure the level of protection of minors in a country. In the face of the different cases of infringing young girls in our country in recent years, and many disputes about criminal law of infringing young girls, it is necessary to correctly interpret the existing laws and put forward some suggestions to improve the rights and interests of young girls. This paper is divided into three parts. The first part mainly introduces the development and evolution of the protection of the sexual rights of young girls in our country's criminal law, as well as the definition of the concepts of "young girls" and "young girls' sexual rights". In terms of legislation, the criminal protection of sexual rights of young girls in our country is becoming more and more perfect and clear. The young girls in China are women under the age of 14. The "sexual rights" of the young girls are different from the "sexual rights" of other women. It mainly emphasizes the rights of sexual privacy, sex education, sexual health, sexual relief and so on, and does not include the right of sexual commitment. The second part expounds the four main disputes in the criminal law protection of the sexual rights of young girls in China: how to define "young girls", and how to apply the principle of strict liability or subjective and objective consistency in the principle of imputation. And whether the crime of sexual assault should require "knowing" that the victim is a young girl; whether the act of adultery should be regarded as rape or the crime of adultery; and whether the crime of whoring a young girl should be abolished. In the third part, on the basis of the first and second parts of the dispute and other issues to make a corresponding point of view. This article thinks that the crime against young girls should adopt the principle of consistent subjectivity and objectivity, and the establishment of the crime requires the perpetrator to know that the other party is a young girl, and it is not a crime to have evidence to prove that he does not know. The crime object and accomplished standard of the crime of adultery is different from the common crime of rape, which determines that the act of committing adultery should be independent crime; the establishment of the crime of whoring young girl distinguishes the good family from the bad young girl, and it should be abolished. In addition, according to the definition of young girls, the age of young girls in our country is too low. Raising the age of young girls in Criminal Law to less than 18 years old is not only in line with the provisions of international law, but also conducive to improving the level of protection of sexual rights of young girls in our country.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
本文编号：2292311
[Abstract]:The protection of the sexual rights of young girls in criminal law is an important standard to measure the level of protection of minors in a country. In the face of the different cases of infringing young girls in our country in recent years, and many disputes about criminal law of infringing young girls, it is necessary to correctly interpret the existing laws and put forward some suggestions to improve the rights and interests of young girls. This paper is divided into three parts. The first part mainly introduces the development and evolution of the protection of the sexual rights of young girls in our country's criminal law, as well as the definition of the concepts of "young girls" and "young girls' sexual rights". In terms of legislation, the criminal protection of sexual rights of young girls in our country is becoming more and more perfect and clear. The young girls in China are women under the age of 14. The "sexual rights" of the young girls are different from the "sexual rights" of other women. It mainly emphasizes the rights of sexual privacy, sex education, sexual health, sexual relief and so on, and does not include the right of sexual commitment. The second part expounds the four main disputes in the criminal law protection of the sexual rights of young girls in China: how to define "young girls", and how to apply the principle of strict liability or subjective and objective consistency in the principle of imputation. And whether the crime of sexual assault should require "knowing" that the victim is a young girl; whether the act of adultery should be regarded as rape or the crime of adultery; and whether the crime of whoring a young girl should be abolished. In the third part, on the basis of the first and second parts of the dispute and other issues to make a corresponding point of view. This article thinks that the crime against young girls should adopt the principle of consistent subjectivity and objectivity, and the establishment of the crime requires the perpetrator to know that the other party is a young girl, and it is not a crime to have evidence to prove that he does not know. The crime object and accomplished standard of the crime of adultery is different from the common crime of rape, which determines that the act of committing adultery should be independent crime; the establishment of the crime of whoring young girl distinguishes the good family from the bad young girl, and it should be abolished. In addition, according to the definition of young girls, the age of young girls in our country is too low. Raising the age of young girls in Criminal Law to less than 18 years old is not only in line with the provisions of international law, but also conducive to improving the level of protection of sexual rights of young girls in our country.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
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