非典型性服务行为之司法认定和法律应对

Judicial Determination and Legal Countermeasures of Atypical Sex Service

非典型性服务行为是否属于刑法中"卖淫行为",存在单纯行政不法说和完全刑事不法说两种不同观点,导致司法实践中出现认定标准不一、判罚对立等问题。刑法中"卖淫行为"的认定,应采取"粘膜接触+性疾病传染"标准,兼具行政不法与刑事不法的双重视角。既要在立法上实现行政法与刑法的衔接,又要在司法上实现行政处罚与刑事处罚的衔接,有效打击犯罪的同时注重社会治安的综合治理,维护好社会的管理秩序。

The two different points of view on whether atypical sex service belongs to ＂acts of prostitution＂ in criminal law leads to some problems in the judicial practice such as lacking unified identification standards and contradictions between judgment and penalty. The identification of ＂acts of prostitution＂ in the criminal law should adopt the standard of ＂mucosal contact ＋ sexual disease transmission＂, which is based on dual perspectives of administrative illegality and criminally illegality. We should not only realize the connection between administrative taw and criminal law in legislation, but also realize the connection between administrative punishment and criminal punishment in justice, in order to effectively combat crime while focusing on the comprehensive management of social security, and better maintain social management order.