收买被拐卖的妇女、儿童罪定罪量刑规则研究

Research on the Conviction and Sentencing Rules of the Crime of Buying Abducted Women and Children

或囿于认知误区,或源于立法疏漏,刑法对收买被拐卖的妇女、儿童罪的法定刑配置明显轻微。轻刑化的立法配置,使刑事司法在对收买被拐卖的妇女、儿童行为定性时广泛援引《刑法》第13条但书规定出罪,在有罪判决中频繁适用缓刑与免予刑事处罚规定,导致该罪呈现高无罪率与高非实刑率的态势。收买被拐卖的妇女、儿童罪与拐卖妇女、儿童罪的法益具有同质性,对该罪的轻刑化立法配置,是造成定罪量刑失衡与犯罪黑数高的重要原因。应当对本罪的立法与司法进行理性调适:在立法上,宜对收买被拐卖的妇女、儿童罪的法定刑进行重新配置,参照拐卖妇女、儿童罪设置三档法定刑;在司法上,应当从严打击收买被拐卖的妇女、儿童行为,提高实刑率,以增强对收买被拐卖的妇女、儿童罪制裁的实效性。

Due to cognitive misunderstanding or legislative omission,the legal punishment allocation of the crime of buying abducted women and children in the criminal law is obviously slight.The legislative configuration of minor sentencing makes the criminal justice widely invoke the Article 13 of The Criminal Law when characterizing the behavior of buying abducted women and children,and frequently applies the provisions of probation and exemption from criminal punishment in the guilty judgment,which results in the trend of high innocence rate and high non-real sentence rate.The crime of buying abducted women and children has the same legal interests as the crime of trafficking women and children.The legislative allocation of minor sentencing for the crime is an important reason for the imbalance of conviction and the high black number of crimes.The legislation and judicature of this crime should be adjusted rationally.In the field of legislation,it is appropriate to reconfigure the legal punishment for the crime of buying abducted women and children and set up three levels of legal punishment with reference to the crime of trafficking in women and children.In terms of justice,we should strictly crack down on the behavior of buying abducted women and children,and improve the actual punishment rate,so as to fully enhance the effectiveness of the crime of buying abducted women and children.