嫖宿幼女罪若干问题研究
发布时间：2018-11-01 17:19
【摘要】：嫖宿幼女罪,从设立之初就饱受争议,十几年来一直没有间断过。虽然从它产生的过程来看,当时的立法初衷是有一定积极意义的,但最后落实到实践中却没有起到良好的社会效果和法律效果,而且由于立法缺陷导致司法实践中产生了很多无法解决的问题。很多学者试图从解释论角度将嫖宿幼女罪解释的更加合理,但落实该罪的过程中仍然有很多问题无法避免,每当有嫖宿幼女案件发生时,还是会引起很大的社会争议。2013年10月24日,最高人民法院、最高人民检察院、公安部、司法部等四部门发布了《关于依法惩治性侵害未成年人犯罪的意见》,对性侵未成年人的行为作出了更加严厉的规定,尤其是压缩了嫖宿幼女罪的适用年龄(压缩到了十二周岁至十四周岁之间),因此嫖宿幼女罪适用范围已经很小,基本处于被冻结的状态。基于嫖宿幼女罪的存在现状,笔者认为该罪应当在适当时候予以废除。在嫖宿幼女罪废除之后,“如何更好地保护幼女”的工作才刚刚开始,笔者从目前存在的几种主张出发,分析何种方式能更好地填补产生的“真空”,得出自己的看法。 本文主要分为以下四个部分： 第一部分,先论述嫖宿幼女罪产生的过程,包括立法背景、立法目的,笔者认为嫖宿幼女罪的设立初衷是有积极意义的；然后探讨嫖宿幼女罪涉及到的“嫖宿”、“嫖娼”、“猥亵”等相关概念,以期对何为“嫖宿幼女”行为有更准确的理解。 第二部分,通过分析嫖宿幼女罪的构成要件,来引出目前嫖宿幼女罪存在的主要问题,并结合笔者自己的理解对这些存在的问题作深入探讨。 第三部分,基于嫖宿幼女罪存在一些无法解决的问题,因此本部分分析嫖宿幼女罪是否应该废除,然后从该罪实施的效果、其存在的问题、中国当前的国情以及中国所处的国际环境等四个方面探讨,笔者认为目前比较好的方式是运用立法将嫖宿幼女罪予以废除。 第四部分,分析嫖宿幼女罪废除之后,采用哪些方式能够更好的保护幼女的合法权益。
[Abstract]:The crime of whoring young girls has been controversial since its inception, and has not been interrupted for more than a decade. Although the original intention of the legislation at that time had a certain positive significance from the point of view of the process of its emergence, it did not have a good social and legal effect in practice. And because of legislative defects, there are many unsolvable problems in judicial practice. Many scholars try to explain the crime of whoring young girls more reasonably from the angle of explanation, but there are still many problems in the process of implementing the crime. On October 24, 2013, four departments, including the Supreme people's Court, the Supreme people's Procuratorate, the Ministry of Public Security and the Ministry of Justice, issued the opinions on punishing crimes against minors in accordance with the law. There are more stringent provisions on sexual assault of minors, especially the reduction of the applicable age (between 12 and 14 years of age) for the crime of whoring young girls, so the scope of application of the crime of whoring young girls is already very small. Basically in a frozen state. Based on the existing situation of the crime of whoring young girls, the author thinks that the crime should be abolished at an appropriate time. After the abolition of the crime of whoring young girls, the work of "how to better protect the young girls" has just begun. From the viewpoint of several existing opinions, the author analyzes what methods can better fill up the "vacuum" that has been created, and draws his own opinion. This article is divided into the following four parts: the first part discusses the process of the crime of whoring young girls, including legislative background, legislative purposes, the author thinks that the original intention of the crime of whoring young girls is of positive significance; Then it discusses the related concepts of "whoring", "obscenity" and so on, in order to have a more accurate understanding of the behavior of "whoring young girls". The second part, through the analysis of the constitution of the crime of whoring young girls, leads to the main problems existing in the crime of whoring young girls, and combined with the author's own understanding of the existence of these problems to be deeply discussed. The third part, based on the crime of whoring young girls, there are some problems that can not be solved, so this part analyzes whether the crime of whoring girls should be abolished, and then from the effect of the implementation of the crime, its existing problems. The author thinks that the better way is to use legislation to abolish the crime of whoring young girls. In the fourth part, the author analyzes the ways to better protect the legal rights and interests of young girls after the abolition of the crime of whoring.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.34
本文编号：2304584
[Abstract]:The crime of whoring young girls has been controversial since its inception, and has not been interrupted for more than a decade. Although the original intention of the legislation at that time had a certain positive significance from the point of view of the process of its emergence, it did not have a good social and legal effect in practice. And because of legislative defects, there are many unsolvable problems in judicial practice. Many scholars try to explain the crime of whoring young girls more reasonably from the angle of explanation, but there are still many problems in the process of implementing the crime. On October 24, 2013, four departments, including the Supreme people's Court, the Supreme people's Procuratorate, the Ministry of Public Security and the Ministry of Justice, issued the opinions on punishing crimes against minors in accordance with the law. There are more stringent provisions on sexual assault of minors, especially the reduction of the applicable age (between 12 and 14 years of age) for the crime of whoring young girls, so the scope of application of the crime of whoring young girls is already very small. Basically in a frozen state. Based on the existing situation of the crime of whoring young girls, the author thinks that the crime should be abolished at an appropriate time. After the abolition of the crime of whoring young girls, the work of "how to better protect the young girls" has just begun. From the viewpoint of several existing opinions, the author analyzes what methods can better fill up the "vacuum" that has been created, and draws his own opinion. This article is divided into the following four parts: the first part discusses the process of the crime of whoring young girls, including legislative background, legislative purposes, the author thinks that the original intention of the crime of whoring young girls is of positive significance; Then it discusses the related concepts of "whoring", "obscenity" and so on, in order to have a more accurate understanding of the behavior of "whoring young girls". The second part, through the analysis of the constitution of the crime of whoring young girls, leads to the main problems existing in the crime of whoring young girls, and combined with the author's own understanding of the existence of these problems to be deeply discussed. The third part, based on the crime of whoring young girls, there are some problems that can not be solved, so this part analyzes whether the crime of whoring girls should be abolished, and then from the effect of the implementation of the crime, its existing problems. The author thinks that the better way is to use legislation to abolish the crime of whoring young girls. In the fourth part, the author analyzes the ways to better protect the legal rights and interests of young girls after the abolition of the crime of whoring.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.34
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