奸淫幼女型强奸罪的保护法益新说及其共犯论应用

The New Theory on the Legal Interests in the Rape of Having Sexual Course with An Underage Girl and Its Application to the Theory of Second Participants

在我国司法实践中,奸淫幼女犯罪的共犯认定过于狭窄,不利于对幼女进行实质充分的司法保护。究其根源,一方面是由于在强奸罪的保护法益观点上,性权利说和身心健康说均没有具体区别幼女与非幼女尤其是成年女性的实质差异;另一方面则是因为通常坚持强奸罪的罪刑规范是为作为犯设置的,而不能由不作为行为触犯。鉴于此,应当提倡奸淫幼女型强奸罪的保护层法益是“器质性+社会性”的身心成长权,并非仅仅是器质性的、需要通过插入尤其是强制插入意图或行为方能够体现的幼女身心健康权。并且,新法益说的阻挡层法益是具有刑法规范支持保障下一切人都不得与幼女发生性行为的强制性社会行为禁忌,并非性权利逻辑下成年女性和未成年女性都具有的“性的不可侵犯权”。进一步来说,新法益观具有对奸淫幼女犯罪行为的共犯责任类型产生实质性扩展的应用效果,即将奸淫幼女型强奸罪的共犯责任由作为型帮助犯责任扩展至不作为型帮助犯责任,以有利于依法、全面、实质地保障幼女安全、健康成长。具体而言,不作为帮助类型的共犯责任成立除了要求具备刑事保证人地位之外,还不能具有不被正犯知悉的直接帮助故意,并且不作为帮助必须与正犯行为及其结果具有双重因果性。

In the judicial practice of China,the scope of determining a second participant in the crime of having sexual intercourse with an underage girl is too narrow,which is not conducive to the judicial protection of underage girls in a substantial and sufficient manner.To seek the root causes,it is found that,on one hand,in terms of views on the legal interests protected in the legislation on rape,neither the theory of sexual rights nor the theory of physical and mental health has paid special attention to the substantial differences between an underage girls and non-underage girls,especially adult women;On the other hand,it is usually insisted on that the norms on the criminal constituents of and punishment for rape are set only for the offenses by a positive act,and cannot be violated through an act of omission.In view of this,it is advisable to advocate that the legal interest of the rape of having sexual intercourse with an underage girl at the protective layer is the right to physical and mental growth which is"organic+social"rather than the underage girl's right to physical and mental growth which is only organic and needs to be reflected by the intention or behavior of penetration,especially coerced penetration.In addition,the legal interest at the blocking layer of the new theory of legal interest is the compulsory social behavior taboo that everyone shall not have sexual intercourse with an underage girl,which is supported and guaranteed by the norms in the criminal law,rather than the"right to inviolability of sex"that both adult women and female minors have under the logic of sexual rights.Further,the new theory of legal interest,upon its application,has the effect of substantially increasing the types of a second participant's liability in the crime of having sexual intercourse with an underage girl,that is,expanding the liability of a second participant of the rape of having sexual intercourse with an underage girl from the liability of an aider by a positive act to the liability of an aider by omission,so as to help guarantee the safe and health growth of underage girls in a lawful,comprehensive and substantial manner.Specifically,to establish a second participant's liability for the aiding by omission,in addition to the requirement that the status of a criminal guarantor is satisfied,the following conditions should be met that the direct intention of aiding unknown to the perpetrator shall be absent,and aiding by omission must enjoy dual causality with both the act of the perpetration and its consequence.