负有照护职责人员性侵罪构成要素比较分析

A Comparative Study on the Constituent Elements of the Crime of Sexual Assault by Persons with Care Duties

负有照护职责人员性侵罪的保护法益是复合法益,既保护女童性的自决权,也保护被害女童性的健康发展和正常性心理的养成。教育和医疗等机构的正常运转及公众信赖、性伦理等社会法益不是本罪的保护法益。本罪犯罪主体是负有监护、收养、看护、教育、医疗职责的人员。教育培训等机构的教师、一次性治疗的医生以及事实上的看护人员均属于本罪的主体。本罪在客观上要求发生了事实上的性行为,并不要求利用影响力或支配性,只要具备负有照护职责的身份就足以形成鼓励性。缺乏暴力、胁迫等强制手段以及被害人是否同意,均不影响本罪的成立。此外,本罪存在不作为犯及共同犯罪。本罪在主观上要求是故意,在发生认识错误的场合,根据主客观相一致的原则具体判断。特殊职责人员性侵女童的,要么构成与强奸罪的想象竞合犯,要么单独构成本罪。

The crime of sexual assault by a person with care duties is a new crime added by Amendment(Ⅺ)to the Criminal Law of the People’s Republic of China,adopted by the Standing Committee of the National People’s Congress on December 26,2020.With regard to the legal interests of this crime,there is a dispute between the singular legal interest theory and the compound legal interest theory.The former can’t lay the foundation for the punishment of the crime,but the latter can.This crime protects female minors’right to sexual self-determination,and their healthy development of sexuality and normal sexual psychology,but social legal interests such as the normal operation of educational and medical institutions,public trust in these institutions,and sexual ethics among near relatives are not included in its scope of protection.The subject of the crime is a person with the duty of guardianship,adoption,nursing,education,medical care,and so on,and thus this crime is an identity crime.In determining whether a perpetrator is the subject of this crime,the formal and substantive aspects of the perpetrator’s special duty need to be taken into consideration.The substantive aspect is decisive.It should be determined,firstly,whether a female minor’s accurate judgment of sexual self-determination is affected by the special duty of the perpetrator in light of its specific content and,secondly,whether the perpetrator is under an obligation to protect the female minor’s healthy development of sexuality and normal sexual psychology.It is not necessary for a person with the duty of guardianship or adoption to fully meet the formal requirements prescribed by law,and it should not be easily assumed that teachers in training institutions do not meet the requirements of the criminal subject of this crime;doctors in a one-time medical relation and illegal medical practitioners can also be subjects of this crime.A person with nursing duty may be regarded as a miscellaneous provision for the subject of this crime.The objective aspect of this crime is that the perpetrator has sex with a female minor,including having sex with a female minor or making a female minor have sex with him.The establishment of this crime does not require the abuse of dependence on the educator,trainer,etc.as in German criminal law,nor does it require“taking advantage of the opportunity of influence”as in Japanese criminal law.It only requires that the perpetrator has the status of a person with nursing duties.Moreover,the victim’s consent is invalid for this crime.This crime does not require the continuity of the perpetrator’s conduct,and usually the continuation of the special duties is sufficient for this crime.In the case of an error of cognition on an object of this crime,the establishment of this crime is generally denied.This crime may be committed by an omission,and the act of a recipient of a runaway may constitute this crime.This crime is not a crime that must be committed hands-on,so parents etc.can become indirect or even joint perpetrators of this crime.Sexual assault on a female minor by a person with special duties constitutes either an imaginative concurrence of this crime and the crime of rape,or this crime alone.