收买被拐卖妇女罪的刑法教义学拓展

Expanding the Criminal Law Doctrine of the Crime of Buying Abducted Women

收买被拐卖妇女罪的保护法益是非经济属性的人格权,人格权是宪法上人格尊严的法律具体化体现。从个罪的保护法益出发,是否违背妇女意志并不影响本罪成立。“买卖同罪”主张把拐卖妇女行为与收买被拐卖妇女行为纳入同一个罪的构成要件,这并不合理。拐卖妇女行为与收买被拐卖妇女行为性质完全不同,两者并不属于复行为犯的承继正犯,侵害的法益及其程度亦有差异,对拐卖与收买行为进行单独评价,有助于发挥刑法的行为规制机能。收买被拐卖妇女的行为与相关联的强奸、非法拘禁、侮辱等行为分开进行单独评价,并实行数罪并罚,不仅有助于判决书完整评价行为的法益侵害性,准确表明刑法的禁止对象,而且可以证成收买被拐卖妇女、儿童罪的法定刑无须调整,同样能够达到“买卖同罪”所追求的预防效果。对收买被拐卖妇女后出现的强奸、虐待等行为的定性,必须考虑收买型“婚姻”的效力,不宜将该行为解释为婚内强奸或家庭成员之间的虐待,如此才能增加收买被拐卖妇女罪的报案率、起诉率和定罪率。

The legal interests of the crime of buying abducted women is the non-economic right of personality,which is the legal embodiment of the dignity of human beings in the constitution.To protect the legal interests of individual crimes,whether the crime is committed against the will of women does not affect the establishment of the crime.It is unreasonable to include the act of abducting,trafficking women and buying abducted women into the same element of crime,because the two acts are completely different in nature.They do not belong to the successive offenders of the compound behavior crimes.Moreover,there are differences in the legal interests infringed and the degree of infringement in the two acts.Separate evaluation of the acts of trafficking and buying abducted women is conducive to play the behavior regulating function of criminal law.The act of buying abducted women is evaluated separately from the related acts of rape,illegal detention,insult,etc.,and it is applicable to combined punishment,which not only helps the judgment to fully evaluate the infringement of the legal interests of the act and accurately indicate the prohibited objects of the criminal law,but also proves that the statutory penalty for the crime of buying abducted women and children does not need to be adjusted.In addition,it can achieve the preventive effect pursued by“the same crime for abducting,trafficking women and buying abducted women.”For the characterisation of rape and abuse that occurs after buying abducted women,the validity of the buying type“marriage”must be considered,and it is not appropriate to interpret the act as marital rape or abuse between family members,so as to increase the reporting rate,prosecution rate and conviction rate of the crime of buying abducted women.