海峡两岸妨害性自主犯罪立法、司法之比较研究

View on the differences in infringement on Sexual autonomy crime in Legislation and Judiciary between both sides of Taiwan Strait

我国台湾地区妇女团体性自主意识的觉醒推动了性侵害犯罪于1999年的大规模修正。性价值观的变化使得重视个体权利的性自主权此一具体法益观取代社会性伦理秩序此一抽象法益观;法益观的变革导致性交、猥亵两种基本性侵犯罪类型概念界限的位移,也使得性交猥亵犯罪的行为主体及行为对象得以扩大化,实现了对两性的平等对待和保护;而"违反其意愿之方法"对"致使不能抗拒"用语的取代,使性侵犯罪是对性自主权的侵害的不法本质在犯罪构成上得以具体体现出来。由于理解上的差异,司法人员对于性侵犯罪各罪犯罪构成及罪界关系均产生较大分歧。立法技术以及观念上的不同,使得两岸在性自主犯罪的规制以及司法适用上存在一些差异。性自主权法益观下,大陆刑法应在扩大性侵犯罪行为对象、相对明确扩张性交(奸)概念范围、使单纯利用他人不能或不知反抗之状态而为性交或猥亵、与幼年性交之行为罪名独立化,并有条件承认婚内强迫性交的犯罪化,嫖宿幼女实质仅侵害了幼女性自主权,该罪应予以取消而实现其向奸淫幼女型强奸罪的回归。

The awakening of Taiwan woman＇s groups＇ sexual self-consciousness promoted a large scale motion to modify the criminal law on sexual crime in 1999. The change of sexual value promoted the right of sexual autonomy which minds individual rights,as a concrete legal interest to take the abstract legal interest＇s place,whose core is the social ethical of sex order. This reformation also brought about the boundary of the line between sexual intercourse and obscenity,which are the two basic types of sexual crime. what ＇s more,the scope of the behavioral subject and object also has been expanded. Finally,they realized the goal of equally treating and protecting both man and woman. The term of ＂methods beyond his resist＂was substituted by the＂methods against his will＂,which could easily show that the sexual autonomy is the essence of sexual crime on the constitution of crime. Due to the differences in understanding,there is a deep gap between judicial officers in the constitution of each sexual crime and the relationship between them. Different legislative technology and concept between Taiwan and the Mainland produced many differences in legislation and judicial application of sexual crime between them. Under the concept of sexual autonomy,the Mainland should expand the protection scope of the behavioral object of sexual crime,clear and expand the scope of the concept of sexual intercourse relatively,make the behavior of purely using the other who can not or does not know resist to commit sexual intercourse or obscenity to be a separate crime,the same opinion also applies to the situation in which the behavioral object is the younger female. We should also admit the behavior that one of the spouses who forces the other to make sexual intercourse with him during marriage conditionally incrimination. The whoring act only violates younger female＇s sexual autonomy,so the crime should be resolved and finally make this act back to the rape crime.