收买被拐卖妇女行为的不法及其对罪刑的指引

The Illegality of Purchasing Abducted Women and its Guidance towards Crime and Statutory Penalty

我国当前立法、司法实务对待拐卖与收买妇女犯罪的态度可以概括为“重拐卖轻收买”。立法为收买犯罪设置了与拐卖悬殊的法定刑,给司法、执法划定了框架、奠定了基调。司法、执法当然要用足、用好刑法,但前提应当是立法准确、充分评估收买犯罪的不法。收买妇女与拐卖妇女相同的不法是,买卖行为都侵犯了妇女作为平等主体的人格尊严,违反了禁止将妇女当作商品予以买卖的行为规范。这一相同的不法对收买妇女犯罪的意义是,收买行为本身就有充分且独立于后续犯罪的不法,被害妇女的同意不能阻却买卖行为的不法等;对收买妇女犯罪法定刑的意义在于,既然买卖妇女的不法与一般预防必要性相同,买卖就应当同罚,而不能基于“刚需”、期待可能性较低等理由继续维持买卖悬殊、收买犯罪畸轻的法定刑。

The current legislative and judicial practice put more emphasis on combatting the crime of abducting and trafficking women than the crime of purchasing abducted women.The statutory penalty of the former crime is obviously heavier than the latter’s which sets the tone for the judiciary and law enforcement.It is their obligation for the judiciary and law enforcement to follow criminal law,but the precondition is that these crimes are evaluated accurately and equally.These two crimes share the same essence that is they violate women’s human dignity as equal subjects of law and the norm of not treating women as commodities.The meanings of sharing the same essence are:purchasing abducted women has its own illegality which is different from subsequent crimes,the victim’s consent will not negate the illegalities of the crimes,criminal law need to evaluate these two crimes equally through the same statutory penalty,rigid demand and less possibility of expectation are not legitimate reasons for maintaining uneven penalties between these two crimes and the particularly slight penalty of the crime of purchasing abducted women.