刑法如何面对家庭秩序

How Criminal Law Faces Family Order

家庭内部关系形态的多元化及家庭伦理的不同表现形式,决定了刑法在介入家庭秩序时呈现出多元化规范建构。虽然当代的家庭伦理图像已不同于以往时代,但法律义务与亲情义务之间始终互为纠缠,从而使刑法与家庭秩序之间呈现出一种错综复杂的关系,这使家事主义刑法成为客观必须,"区别对待"成为刑法介入家庭秩序的基本罪刑规范建构:刑法对侵犯财产权利的犯罪强调"刑不入为上"原则,对侵犯人身权利的犯罪强化多元化罪刑规范,重视被害人自陷风险在家事主义刑法中的理论价值,并强调刑法不得介入单纯违反道德的行为。

The diversification of family internal relations and different forms of family ethics has deter- mined that criminal law will take on diverse construction of regulations when it interferes family order. Al- though the contemporary family ethics image has varied from the previous era, legal and family obligations have always entangled each other, so that there is a complex relationship between criminal law and family or- der, which makes family criminal law a must under such a realistic condition, moreover, as criminal law inter- feres family order, it is ＂discrimination＂ that becomes the basic construction of regulations on crime and pun- ishment. About crime infringing property rights, criminal law stresses the principle which it prefers not to de- clare crime. About crime that infringes personal rights, criminal law strengthens various regulations on crime and punishment, pay attention to the theoretical value which self- endangering of the victim in family criminal law, and stressed that criminal law cannot interfere the behavior simply against morality.