积极刑法观下“负有照护职责人员性侵罪”的规范适用

The Standard and Applicability of“the Crime of Sexual Assault of Care Responsible Personnel”under the Concept of Active Criminal Law

《刑法修正案(十一)》新增"负有照护职责人员性侵罪"是对积极刑法观的立法回应,体现并贯彻了古典自由主义的刑法思想以及法律家长主义的保护理念,重点强调在保护未成年人免受性侵害中负有照护职责人员这类主体的身份特殊性,负有照护职责人员与其所照护未成年女性发生性关系的行为具有刑事违法性。"明知""手段行为"以及"情节恶劣"是区分罪与非罪的关键要素。本罪与强奸罪为对立关系,"是否违背妇女意志"是二者的本质区别。从教义学上说,本罪的适用范围仅限于"特殊职责人员"获得了未成年女性的实质同意而与其发生性关系的情形。当然,本罪在对未成年人性权益的保护上仍存在适用困境,负有照护职责人员采用非强制手段猥亵未成年女性的情形无法适用,同时也缺乏对未成年男性的法益保护。

The crime of sexual assault in Article 236 of the Criminal Law Amendment(11)is not in conflict with the reduction of the age of criminal responsibility related to the general provisions of the Criminal Law.On the contrary,the setting of this crime is a response to the active view of criminal law,and also the implementation of the classical liberal criminal law thought and legal paternalism in the protection of minors.This crime emphasizes the identity of such as persons responsible for care in protecting minors from sexual assault.It is criminal illegal to have sex with minor women under their care.Among them,“knowing”,“act of means”and“bad circumstances”are the key elements used to distinguish crime from non-crime.In addition,the present crime and rape are the opposite relationship,and whether it is against the will of women is the most essential difference between the two.The application of this offense is limited to circumstances where the perpetrator obtained substantial minor female consent and had sex with her.Finally,the crime still has applicable difficulties in the protection of minors.And the crime cannot apply in the case of molesting minor women,and the lack of protection for minor men.