强奸罪研究二题

Two Issues On Rape Crime

传统观念认为 ,女子仅可成为强奸罪的教唆犯、帮助犯或间接正犯 (间接实行犯 )。从法理学的角度看 ,女子不仅能成为该罪共同犯罪的实行犯 ,还能成为该罪单独犯罪的直接实行犯。对于乘机奸淫妇女行为 ,由于立法的原因 ,在司法解释和司法实践中都将其作为强奸罪处理 ,但这与强奸罪的行为理论不符 ,违背了罪责刑相适原则 ,有悖罪名概括性和准确性的要求 ,也忽视了我国司法资源现实状况。鉴于此 ,建议把乘机奸淫妇女行为从强奸罪中分离出来 ,设立乘机奸淫罪。

Traditionally, female criminals in rape are merely cognized as abettors, accessories, or indirectly practicing offenders. Nomologically, not only can the female in rape be the common practicing criminals but the directly practicing offenders as well. Nearly all the raping actions by seizing opportunities have been legislated as a common rape both in juridical explanation and practice, which, however, breaks the behavior theory on rape, the principle of suiting punishment and culpability to crime, accusation's generality and accuracy, and the present situation of China's juridical resource. As a result, the female raping behaviors of seizing opportunities in rape should be separated from a common rape as a crime of raping by seizing opportunity.