论聚众淫乱的罪与罚——简析换偶行为的法律定性

On the Crime and Punishment of Assembling a Crowd to Engage in Sexual Promiscuity

聚众淫乱和换偶行为都是违反道德并与性有关的行为。非聚众的私密性换偶不是聚众淫乱,是纯粹意义上的换偶,聚众性换偶是换偶更是淫乱。聚众淫乱和非聚众私密性换偶在行为性质、行为结构方式及对社会的影响等方面有所不同,《刑法》对二者的评价也不同。聚众淫乱是犯罪,只有在人性中寻找合理性依据,没有合法存在的空间,是性混乱。非聚众的私密性换偶可以从人性中寻找合理性依据,是性交换,除去我国《刑法》规定的三种情形外,都不是犯罪行为。目前《刑法》规定的聚众淫乱罪比较合理,没有取消和修改的必要。

Both assembling a crowd to engage in sexual promiscuity and spouse -swapping are contrary to morality and sexual behavior. Spouse - swapping, which is non - gathering and private, is not organizing promiscuity but pure spouse - swapping. Gathering spouse - swapping is not only spouse - swapping but also assembling a crowd to engage in sexual promiscuity. Assembling a crowd to engage in sexual promiscuity and spouse - swapping are so different form each other on the aspects of nature and structural patterns of the behavior, even impact on the community. At the same time, crinimal law is also treat them differently. Assembling a crowd to engage in sexual promiscuity, which is crime, can find the rational reason form the basis of human nature only,which is the choas of sex. There is no legal space of assembling a crowd to engage in sexual promiscuity. Non - gathering and private spouse - swapping can find the rational reason form the basis of human nature. At the same time, non - gathering and private spouse - swapping which is sex exchange is not crime except for three cases outside the criminal law. The said of wait and see has the most rationality, at present the provisions of the crime of assembling a crowd to engage in sexual promiscuity in criminal law are reasonbale, there is no need to cancel and no need to amend these provisions.