从释义《惩治性侵未成年人意见》第20条论及嫖宿幼女罪的存废与适用问题

Analysis on the Existence,Repeal & Application about Crime of Whoring Female under 14 Years Old from the Explanation of Article 20th of “Punishing Sexual Abuse of Minors Opinions”

近期,最高人民法院、最高人民检察院、公安部、司法部四机关联合颁布了《关于依法惩治性侵未成年人犯罪的意见》,其中第20条涉及到了嫖宿幼女罪和强奸罪中"奸淫幼女"的关系问题。笔者通过论析嫖宿幼女罪的构成要件及其与强奸罪的关系认为,第20条规定的行为本身就不符合嫖宿幼女罪构成,但因司法实务中易被误判为嫖宿幼女罪,才以司法指导性意见的形式强调该行为只能认定为强奸罪,但该规定并没有要悬空嫖宿幼女罪罪名的意思。由此,笔者进一步阐述了对嫖宿幼女罪存废的观点,并以"量刑反制定罪"思维分析了嫖宿幼女罪和强奸罪在司法适用中的罪名认定问题,以此论证嫖宿幼女罪独立存在的价值。

The main content： Recently, four government offices formulated ＂punishing sexual abuse of minors opinions＂ jointly. The article 20 in this opinion is about the relationship between the crime of whoring female under 14 years old and ＂rape female under 14 years old＂ in the article rape. The author analyzed the construct of the crime of whoring female under 14 years old, and it＇s relationship between rape, considered that the behavior ruled in opinion article 20 was not as same as the crime of whoring female under 14 years old. But in practice, the crime of whoring female under 14 years old always confused with rape. Since this reason, the opinion was made for emphasize the behavior only can be convicted as rape. However, this opinion was not intend to repeal the crime of whoring female under 14 years old. Therefore, the author explicates the view of the crime of whoring female under 14 years old further, and uses the thought of ＂sentence anti conviction＂ to analyzes the application and relationship about the crime of whoring female under 14 years old and the crime of rape in practice, thus prove the independent value of the existence of crime of whoring female under 14 years old.