论认识错误与强奸罪的本质

发布时间：2019-04-02 06:05

【摘要】：强奸罪作为严重侵犯人身权利的犯罪,在刑法和刑罚的适用上应严格谨慎,把握好强奸罪的本质特征显得尤为重要。通过各学说之比较,被害人对性交行为发生的意愿是反映强奸罪的根本特征内容,即强奸罪的本质应该从妇女对性交行为的意愿方面来分析,因此,性交行为如果违背妇女内心有效同意的态度,则性交行为“违背妇女意志”,强奸罪成立。在司法实践中,将使用暴力、胁迫等方式实施的强奸行为,认定为强奸罪的成立较为容易,几乎不存在争议。但是,对于被害人认识错误或者行为人认识错误而发生的性交行为,能否认定为强奸罪的成立,则较为复杂。因认识错误而发生的性交行为,是否属于违背妇女意志,则需要进行事后推定,这一问题,一直是司法实践中认定强奸罪的难题。文中对于刑法中的认识错误,采用事实认识错误和违法性认识错误的分类标准。因违法性认识错误不阻却故意,所以行为人即使不知道违背妇女意志强行性交的行为违反了法律,也仍然构成犯罪,不影响对强奸行为的定罪量刑。但事实认识错误在一定程度下,能够阻却故意,因事实认识错误发生的性交行为,如行为人误把他人当成自己的妻子、女朋友、情人,或者妇女误把行为人当成自己的丈夫等情况,行为人是否构成强奸罪,则应该分情况讨论。
[Abstract]:The crime of rape, as a crime of serious violation of personal rights, should be strictly cautious in the application of criminal law and punishment, and it is particularly important to grasp the essential characteristics of rape. Through the comparison of the theories, the will of the victim to have sexual intercourse is the essential feature of the crime of rape, that is, the essence of the crime of rape should be analyzed from the point of view of the will of women towards sexual intercourse. If sexual intercourse is contrary to the attitude of effective consent, sexual intercourse is "against the will of women" and the crime of rape is established. In judicial practice, it is easy to establish rape as the crime of rape by means of violence, coercion and so on, and there is almost no dispute. However, it is complicated to identify the sexual intercourse as the crime of rape when the victim is wrong about it or the actor is wrong about the sexual intercourse that happens when the victim is wrong about it or the actor is wrong about sexual intercourse. Whether sexual intercourse due to wrong cognition is against the will of women needs to be presumed afterwards. This problem has always been a difficult problem in judicial practice to determine the crime of rape. In this paper, the classification criteria of factual error and illegality in criminal law are adopted. Because the wrong understanding of illegal sex is intentional, even if the perpetrator does not know that the act of forced sexual intercourse against the will of women violates the law, it still constitutes a crime and does not affect the conviction and punishment of rape. However, to a certain extent, the mistake of understanding the facts can stop the sexual intercourse caused by the mistake of knowing the facts, such as the actor mistakenly regards others as his wife, girlfriend, and lover. Or the woman mistakenly regards the perpetrator as her husband, and whether the perpetrator constitutes the crime of rape should be discussed separately.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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