家庭暴力犯罪的刑法學思考
發(fā)布時間：2018-11-03 16:08
【摘要】： 家庭是生命的搖籃,是社會的細胞,是人類生存和發(fā)展的重要組織形式。在健康、和諧的家庭中我們可以體味到親情、關(guān)懷、理解與包容。然而家庭暴力的出現(xiàn)使家庭遠離了親情與溫暖,滋生了矛盾與危機,導致了家庭的裂變,更曾出現(xiàn)過血的慘劇,直接影響了家庭關(guān)系的和睦安寧與社會的和諧穩(wěn)定。20世紀70年代,家庭暴力問題已經(jīng)成為西方國家關(guān)注的熱點,直到20世紀90年代我國才開始對家庭暴力問題進行研究,但主要集中在社會學、心理學和醫(yī)學等學科,在法學界,研究的重點也多集中于民法、婚姻法等領(lǐng)域。其實,家庭暴力與刑事法律有著密切的聯(lián)系,對嚴重的構(gòu)成犯罪的家庭暴力行為理應(yīng)納入刑法學的視野進行評價。但目前我國對家庭暴力犯罪存在著立法上的缺失,對家庭暴力犯罪的研究與探討也比較薄弱,因此,有必要從刑法的角度對家庭暴力犯罪進行審視與思考,這對于規(guī)制家庭暴力犯罪,完善家庭暴力刑法理論以及指導司法實踐都具有十分重要的意義。 本文在借鑒國內(nèi)外已有研究成果的基礎(chǔ)上,結(jié)合我國的國情,分三個部分對家庭暴力犯罪進行刑法解讀: 第一部分為家庭暴力犯罪概述,主要介紹了家庭暴力以及家庭暴力犯罪的一些基本問題。此部分結(jié)合聯(lián)合國對家庭暴力的有關(guān)規(guī)定,援引海外國家和地區(qū)以及我國大陸地區(qū)的有關(guān)法律規(guī)定及理論界的不同觀點對家庭暴力的含義做出詮釋。在此基礎(chǔ)上對家庭暴力犯罪的概念進行了界定,并對現(xiàn)行刑法中與家庭暴力有關(guān)的幾個犯罪進行了比較研究,最后對目前我國大陸地區(qū)家庭暴力犯罪的現(xiàn)狀與特征進行了概括和分析。 第二部分為對家庭暴力犯罪若干疑難問題的思考,共分三節(jié)。此部分分別對家庭暴力犯罪中的“暴力”在刑法語境下的正確理解問題、家庭暴力中的“暴力”構(gòu)成犯罪的標準問題、家庭“冷暴力”是否應(yīng)當入罪、“婚內(nèi)強奸”行為是否構(gòu)成強奸罪以及對家庭暴力犯罪中的施暴者和“以暴制暴”者的量刑原則問題進行了探討與研究,并提出了筆者自己的觀點。 第三部分為完善家庭暴力犯罪刑事立法的思考。此部分筆者對國外家庭暴力犯罪的立法情況進行了概述,針對目前刑事立法中關(guān)于家庭暴力犯罪的規(guī)定存在的缺陷與不足,結(jié)合我們國家的實際情況,試提出完善刑事實體法的思路,以期達到專門規(guī)制家庭暴力犯罪、有效防治家庭暴力的法律效果。 綜合全文,本文主要采用實證與思辨相結(jié)合、定性與定量分析相結(jié)合的研究思路,綜合運用了比較研究法、歷史研究法、案例分析法等刑法學研究方法,以此為輔助工具,希望能更好地剖析家庭暴力犯罪的深層問題,從而為我國家庭暴力犯罪的立法和實踐提供有價值的參考。
[Abstract]:Family is the cradle of life, the cell of society and the important organizational form of human existence and development. In a healthy, harmonious family we can appreciate affection, care, understanding and tolerance. However, the emergence of domestic violence has kept the family away from family affection and warmth, created contradictions and crises, led to the fission of the family, and has resulted in bloody tragedies. In the 1970s, domestic violence has become a hot issue in western countries. It was not until the 1990s that our country began to study the problem of domestic violence. But it mainly focuses on sociology, psychology and medicine. In the field of law, the research focuses on civil law, marriage law and so on. In fact, domestic violence is closely related to criminal law. However, there is a lack of legislation on the crime of domestic violence in our country at present, and the research and discussion of the crime of domestic violence is also relatively weak. Therefore, it is necessary to examine and think about the crime of domestic violence from the angle of criminal law. It is of great significance to regulate the crime of domestic violence, perfect the theory of criminal law of domestic violence and guide judicial practice. On the basis of the domestic and foreign existing research results, this article combines the national conditions of our country, divides into three parts carries on the criminal law interpretation to the domestic violence crime: the first part is the outline of the domestic violence crime, It mainly introduces some basic problems of domestic violence and the crime of domestic violence. Combined with the relevant regulations of the United Nations on domestic violence, this part invokes the relevant laws and regulations of overseas countries and regions as well as the different views of the theoretical circle to explain the meaning of domestic violence. On this basis, the concept of domestic violence crime is defined, and several crimes related to domestic violence in the current criminal law are comparatively studied. Finally, the present situation and characteristics of domestic violence crime in mainland China are summarized and analyzed. The second part is divided into three sections. In this part, the correct understanding of "violence" in the context of criminal law, the standard of "violence" in domestic violence, and whether "cold violence" in family should be criminalized are discussed in this part. Whether the act of "marital rape" constitutes the crime of rape and the sentencing principles of the perpetrators of domestic violence and the perpetrators of violence by violence are discussed and studied, and the author puts forward his own views. The third part is to perfect the criminal legislation of domestic violence crime. In this part, the author summarizes the legislative situation of domestic violence crime in foreign countries, aiming at the defects and shortcomings of the current criminal legislation on domestic violence crime, combined with the actual situation of our country. This paper puts forward the idea of perfecting the criminal substantive law in order to achieve the legal effect of regulating the crime of domestic violence and effectively preventing and controlling domestic violence. Synthesizing the full text, this paper mainly adopts the research thought of combining empirical and speculative, qualitative and quantitative analysis, and synthetically uses comparative research, historical research, case analysis and other criminal law research methods, which is used as a supplementary tool. It is hoped that the deep problems of domestic violence crime can be better analyzed, thus providing a valuable reference for the legislation and practice of domestic violence crime in our country.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D924.3
本文編號：2308273
[Abstract]:Family is the cradle of life, the cell of society and the important organizational form of human existence and development. In a healthy, harmonious family we can appreciate affection, care, understanding and tolerance. However, the emergence of domestic violence has kept the family away from family affection and warmth, created contradictions and crises, led to the fission of the family, and has resulted in bloody tragedies. In the 1970s, domestic violence has become a hot issue in western countries. It was not until the 1990s that our country began to study the problem of domestic violence. But it mainly focuses on sociology, psychology and medicine. In the field of law, the research focuses on civil law, marriage law and so on. In fact, domestic violence is closely related to criminal law. However, there is a lack of legislation on the crime of domestic violence in our country at present, and the research and discussion of the crime of domestic violence is also relatively weak. Therefore, it is necessary to examine and think about the crime of domestic violence from the angle of criminal law. It is of great significance to regulate the crime of domestic violence, perfect the theory of criminal law of domestic violence and guide judicial practice. On the basis of the domestic and foreign existing research results, this article combines the national conditions of our country, divides into three parts carries on the criminal law interpretation to the domestic violence crime: the first part is the outline of the domestic violence crime, It mainly introduces some basic problems of domestic violence and the crime of domestic violence. Combined with the relevant regulations of the United Nations on domestic violence, this part invokes the relevant laws and regulations of overseas countries and regions as well as the different views of the theoretical circle to explain the meaning of domestic violence. On this basis, the concept of domestic violence crime is defined, and several crimes related to domestic violence in the current criminal law are comparatively studied. Finally, the present situation and characteristics of domestic violence crime in mainland China are summarized and analyzed. The second part is divided into three sections. In this part, the correct understanding of "violence" in the context of criminal law, the standard of "violence" in domestic violence, and whether "cold violence" in family should be criminalized are discussed in this part. Whether the act of "marital rape" constitutes the crime of rape and the sentencing principles of the perpetrators of domestic violence and the perpetrators of violence by violence are discussed and studied, and the author puts forward his own views. The third part is to perfect the criminal legislation of domestic violence crime. In this part, the author summarizes the legislative situation of domestic violence crime in foreign countries, aiming at the defects and shortcomings of the current criminal legislation on domestic violence crime, combined with the actual situation of our country. This paper puts forward the idea of perfecting the criminal substantive law in order to achieve the legal effect of regulating the crime of domestic violence and effectively preventing and controlling domestic violence. Synthesizing the full text, this paper mainly adopts the research thought of combining empirical and speculative, qualitative and quantitative analysis, and synthetically uses comparative research, historical research, case analysis and other criminal law research methods, which is used as a supplementary tool. It is hoped that the deep problems of domestic violence crime can be better analyzed, thus providing a valuable reference for the legislation and practice of domestic violence crime in our country.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D924.3
【引證文獻】
相關(guān)期刊論文 前1條
1 夏旭日;;關(guān)于《家庭暴力防治法》的立法考察——以全球性的視角[J];泰山學院學報;2013年01期
相關(guān)碩士學位論文 前2條
1 肖鋒;論家庭暴力的刑法規(guī)制[D];鄭州大學;2010年
2 莊立偉;家庭暴力犯罪中受害人的訴訟權(quán)利保護研究[D];中國政法大學;2010年
，本文編號：2308273
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