收买被拐卖的妇女、儿童罪之法定刑反思

Reflection on the Statutory Sentence of the Crime of Buying and Trafficking Women and Children

究竟应否提高收买被拐卖的妇女、儿童罪的法定刑,当前学界有“维持现状论”“拐买同刑论”和“取消罪名论”三种观点,但三者均有待商榷。收买被拐卖的妇女、儿童罪的基本法定刑上限有必要提高到7年有期徒刑,具体理由包括三点:一是刑法以人为本理念的提升;二是在配置法定刑时不能不考虑罪行的反道德性;三是与侵犯相类似的人格权犯罪相比,收买被拐卖的妇女、儿童罪的法定刑明显偏轻。在提升法定刑之外,为更好地治理该类犯罪,还应扩大对该罪共犯的认定范围并增加相关情节加重条款;对相关临近罪名的规定予以完善、调整;在司法上,应通过解释的方法解决该罪的追诉时效问题;放宽被收买人在被收买期间正当防卫的适用;对该类犯罪一律指定异地法院审判。

At present,there are three controversial views on whether to raise the legal punishment of the crime of buying abducted women and children:“maintaining the status quo”,“the same punishment for kidnapping and buying”and“abolishing the charge”.However,the relevant supporting arguments are open to question.It is necessary to raise the basic legal upper limit of the crime of buying and selling abducted women and children to seven years in prison.The reasons lie in:first,the improvement of the people-oriented concept of criminal law;Second,the anti-morality of the crime cannot be considered when allocating the legal punishment.Third,compared with the crime of violating the similar right of personality,the legal punishment of the crime of buying abducted women and children is obviously lighter.In addition to enhancing the legal punishment of this crime,in order to better govern this kind of crime,we should also expand the identification scope of accomplice of this crime and increase the relevant aggravation provisions;we should perfect and adjust the provisions of relevant adjacent charges.In judicature,the question of the statute of limitations for this offense should be resolved by way of interpretation;the application of justifiable defense during the period of bribery should be relaxed;off-site courts should be appointed for all such offenses.