對家庭暴力的刑法思考
發(fā)布時間：2019-02-20 08:48
【摘要】： 家庭暴力是全球性的社會問題，它直接影響家庭關(guān)系的和睦安寧與社會的穩(wěn)定和諧。在法學(xué)界，對家庭暴力的研究主要在民法、婚姻法領(lǐng)域進(jìn)行，其實，家庭暴力與刑事法律密切聯(lián)系，針對我國目前家庭暴力立法缺失的情況，對嚴(yán)重的家庭暴力行為進(jìn)行刑法評價已經(jīng)顯得十分必要。同時，由于針對家庭暴力刑法方面的探討比較薄弱，從刑法角度對家庭暴力問題進(jìn)行審視與思考，對于規(guī)制家庭暴力犯罪、有效預(yù)防和防治家庭暴力具有重大意義。形成對家庭暴力的刑法認(rèn)識，構(gòu)建盡可能完善的有關(guān)家庭暴力刑法方面的理論，對于指導(dǎo)刑事司法實踐同樣具有重要意義。 本文主要從五個部分對家庭暴力進(jìn)行刑法解讀： 首先，明確家庭暴力中“家庭”的內(nèi)涵。筆者認(rèn)為，刑法中“家庭”的范圍不宜作擴大解釋，，應(yīng)當(dāng)比民事法律中“家庭”的含義狹窄，指具有親屬關(guān)系并且處于共同生活的狀態(tài)。 其次，明確家庭暴力中“暴力”的內(nèi)涵。家庭暴力是刑法中暴力的一種，比照刑法中暴力的表現(xiàn)形式、程度范圍、行為方式、作用對象四個方面，筆者認(rèn)為家庭暴力中“暴力”并不完全等同于刑法中“暴力”，家庭暴力中的“暴力”內(nèi)涵小于刑法中“暴力”的內(nèi)涵，其一，家庭暴力中“暴力”大多表現(xiàn)為暴力行為本身構(gòu)成犯罪；其二，家庭暴力中“暴力”的上限是故意殺人行為，下限則高于刑法中其他犯罪的暴力標(biāo)準(zhǔn)，要求達(dá)到輕傷以上的程度；其三，家庭暴力中“暴力”僅指現(xiàn)實暴力；其四，家庭暴力中“暴力”不包括財物。此外，刑法中的家庭暴力排除冷暴力，并指出所有的家庭暴力都是故意犯罪。 再次，家庭暴力中的共同犯罪問題。家庭暴力中共同犯罪特殊形式為血親群體對抗姻親個人，在司法實踐中并不是所有的共同犯罪人都要追究刑事責(zé)任，筆者認(rèn)為，最合理的解釋是“期待可能性”理論，法律不能期待共同生活的家庭成員對于同一個家庭成員的違法犯罪行為做出制止舉動。而在家庭暴力片面共犯中，對其刑事責(zé)任的追究雖沒有法律的明文規(guī)定，但從價值層面上應(yīng)當(dāng)予以肯定，這涉及到罪刑法定原則從形式主義到價值主義的轉(zhuǎn)變。 再次，家庭暴力的量刑問題。對家庭暴力的量刑應(yīng)當(dāng)區(qū)別施暴者與惡逆變后的受害者，并考慮不同的情節(jié)因素。筆者認(rèn)為，對施暴者應(yīng)當(dāng)加重處罰。對受害者不堪忍受家庭暴力實施傷害行為應(yīng)當(dāng)注意劃分正當(dāng)防衛(wèi)的界限，對屬于正當(dāng)防衛(wèi)的行為不追究刑事責(zé)任，而對屬于故意傷害行為的一般應(yīng)予以從寬處理。 最后，在針對目前刑法關(guān)于家庭暴力犯罪存在的缺陷與不足的基礎(chǔ)上，筆者建議在刑法中增設(shè)專門的家庭暴力罪，作為一個類罪并列于刑法分則的其他十類犯罪，以期達(dá)到專門規(guī)制、有效防治家庭暴力的法律效果。
[Abstract]:Domestic violence is a global social problem, which directly affects the harmony of family relations and social stability and harmony. In the field of law, the research on domestic violence is mainly carried out in the fields of civil law and marriage law. In fact, domestic violence is closely related to criminal law, aiming at the lack of domestic violence legislation in our country at present. It is necessary to evaluate the serious domestic violence in criminal law. At the same time, because of the weak discussion on the criminal law of domestic violence, it is of great significance to examine and think about the problem of domestic violence from the angle of criminal law, to regulate the crime of domestic violence and to prevent and prevent it effectively. It is also of great significance for guiding the practice of criminal justice to form a criminal law understanding of domestic violence and to construct the theory of domestic violence criminal law as perfect as possible. This paper interprets domestic violence from five parts. Firstly, it clarifies the connotation of "family" in domestic violence. The author thinks that the scope of "family" in criminal law should not be extended and should be narrower than the meaning of "family" in civil law, which refers to the state of having kinship and living together. Secondly, clarify the connotation of "violence" in domestic violence. Domestic violence is a kind of violence in criminal law. Comparing with four aspects of violence in criminal law, the author thinks that "violence" in domestic violence is not equal to "violence" in criminal law. The connotation of "violence" in domestic violence is smaller than that of "violence" in criminal law. First, most of "violence" in domestic violence is manifested as a crime of violence itself; Second, the upper limit of "violence" in domestic violence is intentional homicide, and the lower limit is higher than the violent standard of other crimes in criminal law. Fourth, domestic violence in the "violence" does not include property. In addition, domestic violence in criminal law excludes cold violence and states that all domestic violence is intentional. Thirdly, the problem of joint crime in domestic violence. The special form of joint crime in domestic violence is blood relatives against in-laws. In judicial practice, not all joint offenders should be investigated for criminal responsibility. In my opinion, the most reasonable explanation is the theory of "expectation possibility". The law cannot expect a family member living together to stop the crime committed by the same family member. In the one-sided accomplice of domestic violence, the investigation of its criminal responsibility has no legal provisions, but it should be affirmed from the value level, which involves the transformation of the principle of legality from formalism to valualism. Thirdly, the sentencing of domestic violence. The sentencing of domestic violence should distinguish between the perpetrator and the victim, and consider different circumstances. I believe that the perpetrators of violence should be aggravated penalties. We should pay attention to dividing the boundary of justifiable defense to the victims who can't bear the domestic violence, and not investigate the criminal responsibility for the acts that belong to the legitimate defense, but should give lenient treatment to those who belong to the intentional injury behavior. Finally, on the basis of the defects and shortcomings of the present criminal law on domestic violence, the author suggests that a special crime of domestic violence should be added to the criminal law, as a kind of crime and listed in the other ten kinds of crimes in the special provisions of the criminal law. In order to achieve special regulation, effective prevention and treatment of domestic violence legal effect.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D924
本文編號：2427021
[Abstract]:Domestic violence is a global social problem, which directly affects the harmony of family relations and social stability and harmony. In the field of law, the research on domestic violence is mainly carried out in the fields of civil law and marriage law. In fact, domestic violence is closely related to criminal law, aiming at the lack of domestic violence legislation in our country at present. It is necessary to evaluate the serious domestic violence in criminal law. At the same time, because of the weak discussion on the criminal law of domestic violence, it is of great significance to examine and think about the problem of domestic violence from the angle of criminal law, to regulate the crime of domestic violence and to prevent and prevent it effectively. It is also of great significance for guiding the practice of criminal justice to form a criminal law understanding of domestic violence and to construct the theory of domestic violence criminal law as perfect as possible. This paper interprets domestic violence from five parts. Firstly, it clarifies the connotation of "family" in domestic violence. The author thinks that the scope of "family" in criminal law should not be extended and should be narrower than the meaning of "family" in civil law, which refers to the state of having kinship and living together. Secondly, clarify the connotation of "violence" in domestic violence. Domestic violence is a kind of violence in criminal law. Comparing with four aspects of violence in criminal law, the author thinks that "violence" in domestic violence is not equal to "violence" in criminal law. The connotation of "violence" in domestic violence is smaller than that of "violence" in criminal law. First, most of "violence" in domestic violence is manifested as a crime of violence itself; Second, the upper limit of "violence" in domestic violence is intentional homicide, and the lower limit is higher than the violent standard of other crimes in criminal law. Fourth, domestic violence in the "violence" does not include property. In addition, domestic violence in criminal law excludes cold violence and states that all domestic violence is intentional. Thirdly, the problem of joint crime in domestic violence. The special form of joint crime in domestic violence is blood relatives against in-laws. In judicial practice, not all joint offenders should be investigated for criminal responsibility. In my opinion, the most reasonable explanation is the theory of "expectation possibility". The law cannot expect a family member living together to stop the crime committed by the same family member. In the one-sided accomplice of domestic violence, the investigation of its criminal responsibility has no legal provisions, but it should be affirmed from the value level, which involves the transformation of the principle of legality from formalism to valualism. Thirdly, the sentencing of domestic violence. The sentencing of domestic violence should distinguish between the perpetrator and the victim, and consider different circumstances. I believe that the perpetrators of violence should be aggravated penalties. We should pay attention to dividing the boundary of justifiable defense to the victims who can't bear the domestic violence, and not investigate the criminal responsibility for the acts that belong to the legitimate defense, but should give lenient treatment to those who belong to the intentional injury behavior. Finally, on the basis of the defects and shortcomings of the present criminal law on domestic violence, the author suggests that a special crime of domestic violence should be added to the criminal law, as a kind of crime and listed in the other ten kinds of crimes in the special provisions of the criminal law. In order to achieve special regulation, effective prevention and treatment of domestic violence legal effect.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D924
【引證文獻(xiàn)】
相關(guān)期刊論文 前1條
1 宋哲雯;饒繼姬;;反家庭暴力的刑法思考[J];法制與社會;2011年32期
本文編號：2427021
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