负有照护职责人员性侵罪的保护法益及其认定

Legal Interests Protected by the Article Concerning the Crime of Sexual Assault Committed by a Person Performing Guardianship or Other Special Duties to a Female Minor and the Identification of the Crime

《刑法修正案(十一)》增设负有照护职责人员性侵罪,以回应社会中滥用照护职责形成的信赖关系来攫取性利益的行为。学界关于该罪保护法益的争鸣观点主要有性自主权说、身心健康说和折中说,性自主权并不能完全涵盖负有照护职责人员性侵罪的保护法益,身心健康说和折中说亦有各自的不足。负有照护职责人员性侵罪的立法源自于应对惩治性侵未成年人行为的实践需要和保护未成年人合法权益的迫切需求,该罪保护的法益是多重的、复杂的,包括性自主权和未成年人身心健康权。

Amendment(XI)to the Criminal Law of the P.R.C added the crime of sexual assault committed by a person performing guardianship,nursing,medical care,or other special duties to a female minor,in order to combat those abusing the trust established with female minors and seek for sexual benefits.There are diversified viewpoints on legal interests protected by this charge in the academia,including the theory on sexual autonomy,the theory on physical and mental health,and a compromise theory.The theory on sexual autonomy cannot fully cover all legal interests protected by the article concerning crime of sexual assault committed by a person performing guardianship,nursing or other special duties to a female minor,while the theory on physical and mental health theory and the compromise theory have respective deficiencies.The original intention of the legislation on this crime is to meet the practical needs of punishing the acts of sexual assault on minors and the urgency for protecting minors'legitimate rights and interests.The legal interests protected by this article are multiple and complex,including sexual autonomy and the minors'rights of physical and mental health.