强迫幼女卖淫法律适用的几个问题——兼评“两高”《关于办理组织、强迫、引诱、容留、介绍卖淫刑事案件适用法律若干问题的解释》

Several Issues about the Forced Prostitution of Young Girls——Also on “Interpretation about Some Issues on Law Application in Criminal Cases of Organizing,Forcing,Seducing,Sheltering or Introducing Prostitution ”

在嫖宿幼女罪被取消后,"两高"的《解释》并没有将强迫幼女卖淫"回归"到强奸罪,而是继续保留在强迫卖淫罪中,并将其作为"情节严重"的情形之一,这一做法有其合理性。已满14周岁不满16周岁的未成年人实施强迫幼女卖淫的,可以根据是强奸罪的间接正犯还是强奸罪的片面共犯来确定是否负刑事责任。强迫幼女卖淫同时触犯其他罪名的,应从一重罪处断,而另犯其他罪行的,才应数罪并罚。《解释》将幼女作为提升法定刑的条件,强迫1名幼女卖淫即属"情节严重",从而使刑法第三百五十八条第二款"从重处罚"的适用成为难题。

After the crime of whoring for young girls was cancelled, Judicial Interpretation did not make the forced prostitution of young girls back to the crime of rape. This behavior still belongs to the crime of compelling others to prostitute. This regulation has its rationality. Juveniles, who have reached the age of 14 but under the age of 16, forcing prostitution of young girls shall bear different criminal responsibility based on indirect principal offender or one-sided accomplice of rape. If the behaviors of forcing young girls into prostitution commit another crime at the same time, they should be punished by the more serious one. But if there are other crime behaviors, they must be punished with combined punishment. The Interpretation defined the young girls as a condition for raising the legal penalty while forcing only one young girl to engage inprostitution is ＂serious＂. This brings about a dilemma on ＂heavier punishment＂ in the application of article 358, paragraph 2 in criminal law.