强奸罪与嫖宿幼女罪的关系
车浩强奸罪与嫖宿幼女罪的关系
Relationship between Offence of Rape and Whoring with Uirls under 14
期刊名称：《法学研究》
期刊年份：
作者：车浩
单位：清华大学法学院
中文关键词：强奸罪;嫖宿幼女罪;法条竞合;想象竞合犯;有效同意
英文关键词：rape;whoring with girls under 14;articles concurrence;imaginative coincidental offence;valid consent
中文摘要：
如何理解奸淫幼女型强奸罪与嫖宿幼女罪的关系，刑法理论存在多种解释方案。在立法论上，可以从两罪法条竞合但刑罚轻重失序的角度展开修法必要性的论证。在解释论上，无论是将两罪解释为法条竞合进而主张“重法优于轻法”或者主张想象竞合犯而“从一重罪处罚”，在法理上都难以自洽。较为妥当的解释方案是，缺乏有效同意是强奸罪的构成要件要素，具备有效同意则是嫖宿幼女罪的构成要件要素，因此两罪是互斥关系。同意效力判断的关键在于幼女是否属于具备性同意能力的卖淫幼女。这不仅能够合理说明类法益对刑法章节设置的指导意义，而且有利于维持保护幼女与保障人权之间的平衡。
英文摘要：
With regard to the relationship between the rape offence and whoring with girls under 14, there are several different theoretical viewpoints in criminal law. The basic perspective in this thesis agrees that, from the view of law interpretation, the above-mentioned relationship is mutually exclusive. This is determined by the different basic elements of the two crimes. Lack of valid consent is the constitutive element of rape offence, while provided with valid consent is the key element of the latter one. In case with the consent of the girl under 14, the object of the rape offence is only the young girl who does not have the ability to consent. To the contrary, the object of whoring with young girl is the young girl who has such ability. As a consent cannot be both valid and invalid, only one characterization can be selected between these two crimes which cannot be concurrent. In addition, standing on the point of legal criticism, the second opinion can also be acceptable by demonstrating the necessity of law amendment from the perspectives of articles concurrence and unordered settings of criminal penalty. It cannot be accepted to interpret these two crimes as articles concurrence and further affirm the principle of “heavier article is superior to lighter one”. According to this view, when the interpreter thinks that the punishment does not suit the crime, this principle should be applied in conviction and sentencing. However, applying the weight article without clear provision by law shows a false cognition in the nature of punishment right and is actually utilizing the legislative power in the name of interpretation. In addition, this article is also not in favor that the two crimes are imaginative coincidental offence so that the severe punishment should be applied. Even if people acknowledge that the two crimes are concurrent, such concurrence can only be constant and necessary, so it can not be imaginative coincidental at all but articles concurrence only. Furthermore, the allegation of fully utilizing the imaginative coincidental offence is not suitable for current national conditions. It is likely to be abused without limitation in prevailing judicial environments, and works as a foundation for severe cracking down on crime or an excuse to cover up questionable points for conviction.
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