拐卖妇女、儿童罪的立法完善研究
发布时间：2018-07-17 03:12
【摘要】：拐卖妇女、儿童罪不仅是学界在维护妇女、儿童权益方面关注的热门,也是国家公权力重点整治、打击的犯罪对象之一。但是,对于拐卖妇女、儿童罪的研究重点往往是立法将妇女、儿童确立为此罪对象的局限性,或者分析此罪的分歧点,如:对此罪既遂标准的探析。因此而得出的研究结论往往是恢复我国1979年《刑法》的拐卖人口罪,以及论证各种争议观点的不合理处或者可行处,并没有结合近些年来此罪新的发展趋势和法治环境,所以对此罪的立法体系的完善产生的作用往往是有局限性的。在现代社会发达的网络环境下,拐卖妇女、儿童的犯罪行径产生的社会影响远超过以往,人们对于拐卖妇女、儿童犯罪行径的关注度和痛责感也远胜从前,再加上社会时代的发展、打击力度的增加,这一类的犯罪行为无论是在作案手段、作案方式还是社会危害性、社会影响力上都与之前大有不同。把眼光仅仅局限于犯罪对象的局限性问题上对此罪进行研究已经是较为片面的了,而仅探讨争议问题也难以得出与司法实践相契合的立法完善建议。因此对于此罪的研究应该结合最高人民法院针对司法案件、实例所总结下的新情况、新特点、总体发展趋势等,来进行有针对性的立法完善的研究与探讨。最高司法机关曾发文指出,此罪在犯罪手法、犯罪形式上都有了新的特点,如备受网民关注的出卖亲生子女的现象越来越多,利用网络进行贩卖婴儿的活动也越来越猖獗,相比之下,对被害人进行拐骗的形式则显著减少。因此,对于此罪的立法完善研究理应体现并结合这些新情况,在具体内容上不应再局限于犯罪对象是妇女、儿童,应认识到新发展趋势下"卖"的本质的突出,"拐"的属性的淡化,在立法上应以更符合司法和社会实践、以及国际规定的规范性的罪名表述为基础,展开对此罪的立法缺陷分析、完善建议,从而弥补立法有一定滞后性的不足,实现此罪立法体系的真正完善。拐卖妇女、儿童罪立法完善的内容,首先应从应当性的角度对此罪理论和实践上"应是什么"形成总体上的依据和指导,如应体现此罪的犯罪本质、符合此罪的发展趋势、与国际规定接轨等;其次,再应在这个整体框架下具体分析我国现行的关于此罪的立法缺陷,如"拐"的属性的过分强调、犯罪对象的局限性以及现有刑罚结构的不足等;最后,应紧扣当前形势下我国现有立法存在的不合理之处,提出将体现此罪犯罪本质、符合立法原意、契合此罪发展趋势且与国际接轨的"贩卖人口罪"确立为该罪的罪名,再结合最高人民法院的典型案例以及刑法修正案(六)、(八)及反家庭暴力法的新内容,将强迫劳动、组织乞讨等新完善的内容添加到此罪的法定量刑情节中,并适度增加对收买人的处罚刑种及处罚幅度等。从而不仅在社会舆论环境上回应备受关注和谴责的、越来越多的出卖亲生子女案件及网络贩婴案件等,还能实现在社会主义法治建设环境下的立法体系的完善,实现刑法真正的罪责刑相适应,维护法律与司法的权威,促进新时代下国民法律意识的增强以及法治观念的深入。
[Abstract]:The crime of kidnapping and selling women is not only a hot issue in the field of safeguarding women and children's rights and interests, but also one of the targets of the state's public power. However, the focus of research on the crime of abducting women and children is often the limitation of legislation to establish women and children as the object of this crime, or to analyze the differences of this crime, such as: The analysis of the standard of accomplished offense of this crime. Therefore, the conclusion of the study is often to restore the crime of abduction in the criminal law of China in 1979, and to demonstrate the unreasonable or feasible points of various disputed views, and do not combine the new trend of development and the environment of the rule of law in recent years, with the effect of the perfection of the legislative system of this crime. It is often limited. In the developed network environment of modern society, the social impact of trafficking of women and children's crimes is far more than in the past. People are far more concerned about the abduction and sale of women and children's crimes than in the past, and the development of the social age, the increase of the strength of the attack, and the crime of this kind. It is the means of making a case, the way the case is done or the social harmfulness, and the social influence is different from the previous one. It is more one-sided to study the crime on the limitation of the object of the crime. The study of this crime should be combined with the new situation, the new characteristics and the overall development trend summarized by the Supreme People's court in judicial cases, the new characteristics and the general trend of development. The supreme judicial organ, Ceng Fawen, pointed out that the crime has new characteristics in the criminal means and form of crime, such as the concern of the netizens. There is a growing phenomenon of selling children and children, and the use of Internet for trafficking in infants is becoming more and more rampant. In contrast, the form of abduction of victims is significantly reduced. Therefore, the legislative perfection of this crime should be reflected and combined with these new circumstances, and should not be confined to the target of women in specific content. Children should recognize the essence of "selling" under the new trend of development. The desalination of "abduction" attribute should be based on the legislation that is more in line with the judicial and social practice, and the standardized expression of the international regulations, to analyze the legislative defects of this crime and improve the construction proposal, so as to make up for the shortcomings of the legislation which has a certain lag and realize this crime. The real perfection of the legislative system. The perfect content of the crime of kidnapping and selling women and children should first form the general basis and guidance of the theory and practice "what should be" from the point of view. For example, it should reflect the nature of the crime, conform to the development trend of this crime, conform to the international regulations, and so on. Secondly, it should be in this overall framework. The current legislative defects of this crime in China are analyzed in detail, such as the excessive emphasis on the property of "abduction", the limitation of the criminal object and the deficiency of the existing penalty structure. Finally, it should be closely linked with the existing unreasonable existing legislation in the current situation, which will reflect the essence of the crime and conform to the original meaning of the legislation and fit the development of this crime. The crime of "trafficking in human trafficking", which is in line with the international line, is established as the crime of this crime, and then combined with the typical cases of the Supreme People's court, the amendment of the criminal law (six), (eight) and the new content of the anti domestic violence law, the new content, such as forced labor, the organization of begging, and so on, are added to the legal sentencing circumstances of this crime, and the place of the buyer is appropriately increased. It is not only in the social public opinion environment to respond to the much concern and condemnation, but also to sell more and more cases of children and children and the case of Internet trafficking. It can also achieve the perfection of the legislative system in the environment of socialist construction of the rule of law, the realization of the true criminal responsibility and punishment of the criminal law, and the protection of the right of law and judicature. Wei promotes the enhancement of national legal consciousness in the new era and the deepening of the concept of rule of law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.34
本文编号：2128751
[Abstract]:The crime of kidnapping and selling women is not only a hot issue in the field of safeguarding women and children's rights and interests, but also one of the targets of the state's public power. However, the focus of research on the crime of abducting women and children is often the limitation of legislation to establish women and children as the object of this crime, or to analyze the differences of this crime, such as: The analysis of the standard of accomplished offense of this crime. Therefore, the conclusion of the study is often to restore the crime of abduction in the criminal law of China in 1979, and to demonstrate the unreasonable or feasible points of various disputed views, and do not combine the new trend of development and the environment of the rule of law in recent years, with the effect of the perfection of the legislative system of this crime. It is often limited. In the developed network environment of modern society, the social impact of trafficking of women and children's crimes is far more than in the past. People are far more concerned about the abduction and sale of women and children's crimes than in the past, and the development of the social age, the increase of the strength of the attack, and the crime of this kind. It is the means of making a case, the way the case is done or the social harmfulness, and the social influence is different from the previous one. It is more one-sided to study the crime on the limitation of the object of the crime. The study of this crime should be combined with the new situation, the new characteristics and the overall development trend summarized by the Supreme People's court in judicial cases, the new characteristics and the general trend of development. The supreme judicial organ, Ceng Fawen, pointed out that the crime has new characteristics in the criminal means and form of crime, such as the concern of the netizens. There is a growing phenomenon of selling children and children, and the use of Internet for trafficking in infants is becoming more and more rampant. In contrast, the form of abduction of victims is significantly reduced. Therefore, the legislative perfection of this crime should be reflected and combined with these new circumstances, and should not be confined to the target of women in specific content. Children should recognize the essence of "selling" under the new trend of development. The desalination of "abduction" attribute should be based on the legislation that is more in line with the judicial and social practice, and the standardized expression of the international regulations, to analyze the legislative defects of this crime and improve the construction proposal, so as to make up for the shortcomings of the legislation which has a certain lag and realize this crime. The real perfection of the legislative system. The perfect content of the crime of kidnapping and selling women and children should first form the general basis and guidance of the theory and practice "what should be" from the point of view. For example, it should reflect the nature of the crime, conform to the development trend of this crime, conform to the international regulations, and so on. Secondly, it should be in this overall framework. The current legislative defects of this crime in China are analyzed in detail, such as the excessive emphasis on the property of "abduction", the limitation of the criminal object and the deficiency of the existing penalty structure. Finally, it should be closely linked with the existing unreasonable existing legislation in the current situation, which will reflect the essence of the crime and conform to the original meaning of the legislation and fit the development of this crime. The crime of "trafficking in human trafficking", which is in line with the international line, is established as the crime of this crime, and then combined with the typical cases of the Supreme People's court, the amendment of the criminal law (six), (eight) and the new content of the anti domestic violence law, the new content, such as forced labor, the organization of begging, and so on, are added to the legal sentencing circumstances of this crime, and the place of the buyer is appropriately increased. It is not only in the social public opinion environment to respond to the much concern and condemnation, but also to sell more and more cases of children and children and the case of Internet trafficking. It can also achieve the perfection of the legislative system in the environment of socialist construction of the rule of law, the realization of the true criminal responsibility and punishment of the criminal law, and the protection of the right of law and judicature. Wei promotes the enhancement of national legal consciousness in the new era and the deepening of the concept of rule of law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.34
【参考文献】
相关博士学位论文 前1条
1 秦永峰;犯罪论体系的比较与建构[D];武汉大学;2012年
相关硕士学位论文 前4条
1 郝静;拐卖妇女、儿童罪被害主体的认定[D];中国青年政治学院;2015年
2 高岩林;我国犯罪构成理论体系的反思与重构[D];河南大学;2011年
3 刘晓瑜;拐卖妇女、儿童罪相关问题探析[D];中国政法大学;2011年
4 朱雪平;论我国拐卖妇女、儿童罪的立法完善[D];苏州大学;2008年
，本文编号：2128751
本文链接：https://www.wllwen.com/shoufeilunwen/shuoshibiyelunwen/2128751.html
