运用多元立法共治思维解决我国儿童拐卖问题

Use the Thoughts of Multiple Legislation to Solve the Problem of Child Abduction in Our Country

近年来,我国儿童拐卖问题已经呈现出案件数量的上升和案件性质恶劣的不良趋势,对社会公法秩序、家庭和谐、儿童身心健康等法益造成了严重损害。鉴于立法者认识到"买方市场"在儿童拐卖中起到的变相鼓励作用,我国刑法修正案(九)第241条中将收买被拐卖儿童的行为由原刑法的"有条件免责"修改为"有条件减轻刑责",意味着刑法开始采取"收买被拐卖儿童入刑"的态度来遏制儿童拐卖。这种考虑当然有一定的效果,但是儿童拐卖是一个非常复杂的社会问题,单纯依靠刑法来打击显然不符合法治现代化的要求,另外刑法实务界对于"收买被拐卖儿童入刑"也并不完全赞同,导致新刑法的条款被冷落。实行多元立法共治不仅符合法治现代化的内在要求,还能够通过不同部门法之间的立法协调的良性互动弥补目前强调单一刑法惩治的缺陷,但是要通过克服刑事立法的情绪化、完善民法监护责任、重新调整收养条件等解决现实存在的困境。

In recent years, China＇s rise in child abduction has presented the case number and the nature of the case of the bad trend, and the social public order, family harmony, children＇s physical and mental health law caused serious damage. Lawmakers recognize the ＂buyer＇s market＂ played a role in encouraging in child abduction, the arti- cle 241 of the criminal law amendment in China will define abducted children＇s behavior by changing from ＂the criminal conditional exemption＂ to ＂conditional relief＂, which means that the criminal law begins to take ＂make buying abducted children a crime＂ atti- tude to curb child trafficking.This consideration, of course, has a certain effect, but the child abduction is a very complex social question, so Relying on the criminal law obvious- ly does not accord with the requirement of modern rules of law, and criminal law practice for ＂make buying abducted children a crime＂ does not fully agree with the terms of the new criminal law. Multiple legislation should not only conform the intrinsic requirements of the modernization of the rule of law, also can pass legislation coordination between dif- ferent sectors of the benign interaction making up for the defect of current emphasis on a single criminal law but to overcome emotional criminal legislation, perfect the civil law supervision responsibility, readjust adopted conditions to solve the plight of reality.