网络拍照型猥亵行为之证否与刑法现代性反思

Negation of internet photo-type obscene behavior and rethink of the modernity of criminal law

最高人民检察院近日发布指导案例,将在网络上强迫儿童自拍并发送裸照的行为认定为猥亵儿童。猥亵儿童罪是即成犯,猥亵行为与法益侵害结果具有即时性,指导案例的认定并不可取。产生这种错误的结论并非偶然,而是现代刑法中家长主义异化的必然结果。在实然层面上,应当采取以体系解释为主导、行政处罚为补充、及时立法为保障的路径,改变过度使用刑法进行法益保护的现状。

The Supreme People's Procuratorate recently issued a guidance case,which identified acts sent after forcing children to take naked photos on the Internet as acts of indecent child abuse.However,it is not noticed that the crime of child molestation is an imminent offence,and it is not advisable to conclude that the consequences of the act of molestation and the infringement of legal interests are immediate.The reason for this wrong conclusion is not accidental,but the inevitable result of the alienation of paternalism in modern criminal law.On the practical level,we should take the system interpretation as the dominant,administrative punishment as the supplement,and timely legislation as the safeguard to solve the current situation of excessive use of criminal law to protect legal interests.