拐賣婦女、兒童罪的立法完善研究
發(fā)布時間：2018-07-17 03:12
【摘要】：拐賣婦女、兒童罪不僅是學(xué)界在維護婦女、兒童權(quán)益方面關(guān)注的熱門,也是國家公權(quán)力重點整治、打擊的犯罪對象之一。但是,對于拐賣婦女、兒童罪的研究重點往往是立法將婦女、兒童確立為此罪對象的局限性,或者分析此罪的分歧點,如:對此罪既遂標準的探析。因此而得出的研究結(jié)論往往是恢復(fù)我國1979年《刑法》的拐賣人口罪,以及論證各種爭議觀點的不合理處或者可行處,并沒有結(jié)合近些年來此罪新的發(fā)展趨勢和法治環(huán)境,所以對此罪的立法體系的完善產(chǎn)生的作用往往是有局限性的。在現(xiàn)代社會發(fā)達的網(wǎng)絡(luò)環(huán)境下,拐賣婦女、兒童的犯罪行徑產(chǎn)生的社會影響遠超過以往,人們對于拐賣婦女、兒童犯罪行徑的關(guān)注度和痛責(zé)感也遠勝從前,再加上社會時代的發(fā)展、打擊力度的增加,這一類的犯罪行為無論是在作案手段、作案方式還是社會危害性、社會影響力上都與之前大有不同。把眼光僅僅局限于犯罪對象的局限性問題上對此罪進行研究已經(jīng)是較為片面的了,而僅探討爭議問題也難以得出與司法實踐相契合的立法完善建議。因此對于此罪的研究應(yīng)該結(jié)合最高人民法院針對司法案件、實例所總結(jié)下的新情況、新特點、總體發(fā)展趨勢等,來進行有針對性的立法完善的研究與探討。最高司法機關(guān)曾發(fā)文指出,此罪在犯罪手法、犯罪形式上都有了新的特點,如備受網(wǎng)民關(guān)注的出賣親生子女的現(xiàn)象越來越多,利用網(wǎng)絡(luò)進行販賣嬰兒的活動也越來越猖獗,相比之下,對被害人進行拐騙的形式則顯著減少。因此,對于此罪的立法完善研究理應(yīng)體現(xiàn)并結(jié)合這些新情況,在具體內(nèi)容上不應(yīng)再局限于犯罪對象是婦女、兒童,應(yīng)認識到新發(fā)展趨勢下"賣"的本質(zhì)的突出,"拐"的屬性的淡化,在立法上應(yīng)以更符合司法和社會實踐、以及國際規(guī)定的規(guī)范性的罪名表述為基礎(chǔ),展開對此罪的立法缺陷分析、完善建議,從而彌補立法有一定滯后性的不足,實現(xiàn)此罪立法體系的真正完善。拐賣婦女、兒童罪立法完善的內(nèi)容,首先應(yīng)從應(yīng)當(dāng)性的角度對此罪理論和實踐上"應(yīng)是什么"形成總體上的依據(jù)和指導(dǎo),如應(yīng)體現(xiàn)此罪的犯罪本質(zhì)、符合此罪的發(fā)展趨勢、與國際規(guī)定接軌等;其次,再應(yīng)在這個整體框架下具體分析我國現(xiàn)行的關(guān)于此罪的立法缺陷,如"拐"的屬性的過分強調(diào)、犯罪對象的局限性以及現(xiàn)有刑罰結(jié)構(gòu)的不足等;最后,應(yīng)緊扣當(dāng)前形勢下我國現(xiàn)有立法存在的不合理之處,提出將體現(xiàn)此罪犯罪本質(zhì)、符合立法原意、契合此罪發(fā)展趨勢且與國際接軌的"販賣人口罪"確立為該罪的罪名,再結(jié)合最高人民法院的典型案例以及刑法修正案(六)、(八)及反家庭暴力法的新內(nèi)容,將強迫勞動、組織乞討等新完善的內(nèi)容添加到此罪的法定量刑情節(jié)中,并適度增加對收買人的處罰刑種及處罰幅度等。從而不僅在社會輿論環(huán)境上回應(yīng)備受關(guān)注和譴責(zé)的、越來越多的出賣親生子女案件及網(wǎng)絡(luò)販嬰案件等,還能實現(xiàn)在社會主義法治建設(shè)環(huán)境下的立法體系的完善,實現(xiàn)刑法真正的罪責(zé)刑相適應(yīng),維護法律與司法的權(quán)威,促進新時代下國民法律意識的增強以及法治觀念的深入。
[Abstract]:The crime of kidnapping and selling women is not only a hot issue in the field of safeguarding women and children's rights and interests, but also one of the targets of the state's public power. However, the focus of research on the crime of abducting women and children is often the limitation of legislation to establish women and children as the object of this crime, or to analyze the differences of this crime, such as: The analysis of the standard of accomplished offense of this crime. Therefore, the conclusion of the study is often to restore the crime of abduction in the criminal law of China in 1979, and to demonstrate the unreasonable or feasible points of various disputed views, and do not combine the new trend of development and the environment of the rule of law in recent years, with the effect of the perfection of the legislative system of this crime. It is often limited. In the developed network environment of modern society, the social impact of trafficking of women and children's crimes is far more than in the past. People are far more concerned about the abduction and sale of women and children's crimes than in the past, and the development of the social age, the increase of the strength of the attack, and the crime of this kind. It is the means of making a case, the way the case is done or the social harmfulness, and the social influence is different from the previous one. It is more one-sided to study the crime on the limitation of the object of the crime. The study of this crime should be combined with the new situation, the new characteristics and the overall development trend summarized by the Supreme People's court in judicial cases, the new characteristics and the general trend of development. The supreme judicial organ, Ceng Fawen, pointed out that the crime has new characteristics in the criminal means and form of crime, such as the concern of the netizens. There is a growing phenomenon of selling children and children, and the use of Internet for trafficking in infants is becoming more and more rampant. In contrast, the form of abduction of victims is significantly reduced. Therefore, the legislative perfection of this crime should be reflected and combined with these new circumstances, and should not be confined to the target of women in specific content. Children should recognize the essence of "selling" under the new trend of development. The desalination of "abduction" attribute should be based on the legislation that is more in line with the judicial and social practice, and the standardized expression of the international regulations, to analyze the legislative defects of this crime and improve the construction proposal, so as to make up for the shortcomings of the legislation which has a certain lag and realize this crime. The real perfection of the legislative system. The perfect content of the crime of kidnapping and selling women and children should first form the general basis and guidance of the theory and practice "what should be" from the point of view. For example, it should reflect the nature of the crime, conform to the development trend of this crime, conform to the international regulations, and so on. Secondly, it should be in this overall framework. The current legislative defects of this crime in China are analyzed in detail, such as the excessive emphasis on the property of "abduction", the limitation of the criminal object and the deficiency of the existing penalty structure. Finally, it should be closely linked with the existing unreasonable existing legislation in the current situation, which will reflect the essence of the crime and conform to the original meaning of the legislation and fit the development of this crime. The crime of "trafficking in human trafficking", which is in line with the international line, is established as the crime of this crime, and then combined with the typical cases of the Supreme People's court, the amendment of the criminal law (six), (eight) and the new content of the anti domestic violence law, the new content, such as forced labor, the organization of begging, and so on, are added to the legal sentencing circumstances of this crime, and the place of the buyer is appropriately increased. It is not only in the social public opinion environment to respond to the much concern and condemnation, but also to sell more and more cases of children and children and the case of Internet trafficking. It can also achieve the perfection of the legislative system in the environment of socialist construction of the rule of law, the realization of the true criminal responsibility and punishment of the criminal law, and the protection of the right of law and judicature. Wei promotes the enhancement of national legal consciousness in the new era and the deepening of the concept of rule of law.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.34
本文編號：2128751
[Abstract]:The crime of kidnapping and selling women is not only a hot issue in the field of safeguarding women and children's rights and interests, but also one of the targets of the state's public power. However, the focus of research on the crime of abducting women and children is often the limitation of legislation to establish women and children as the object of this crime, or to analyze the differences of this crime, such as: The analysis of the standard of accomplished offense of this crime. Therefore, the conclusion of the study is often to restore the crime of abduction in the criminal law of China in 1979, and to demonstrate the unreasonable or feasible points of various disputed views, and do not combine the new trend of development and the environment of the rule of law in recent years, with the effect of the perfection of the legislative system of this crime. It is often limited. In the developed network environment of modern society, the social impact of trafficking of women and children's crimes is far more than in the past. People are far more concerned about the abduction and sale of women and children's crimes than in the past, and the development of the social age, the increase of the strength of the attack, and the crime of this kind. It is the means of making a case, the way the case is done or the social harmfulness, and the social influence is different from the previous one. It is more one-sided to study the crime on the limitation of the object of the crime. The study of this crime should be combined with the new situation, the new characteristics and the overall development trend summarized by the Supreme People's court in judicial cases, the new characteristics and the general trend of development. The supreme judicial organ, Ceng Fawen, pointed out that the crime has new characteristics in the criminal means and form of crime, such as the concern of the netizens. There is a growing phenomenon of selling children and children, and the use of Internet for trafficking in infants is becoming more and more rampant. In contrast, the form of abduction of victims is significantly reduced. Therefore, the legislative perfection of this crime should be reflected and combined with these new circumstances, and should not be confined to the target of women in specific content. Children should recognize the essence of "selling" under the new trend of development. The desalination of "abduction" attribute should be based on the legislation that is more in line with the judicial and social practice, and the standardized expression of the international regulations, to analyze the legislative defects of this crime and improve the construction proposal, so as to make up for the shortcomings of the legislation which has a certain lag and realize this crime. The real perfection of the legislative system. The perfect content of the crime of kidnapping and selling women and children should first form the general basis and guidance of the theory and practice "what should be" from the point of view. For example, it should reflect the nature of the crime, conform to the development trend of this crime, conform to the international regulations, and so on. Secondly, it should be in this overall framework. The current legislative defects of this crime in China are analyzed in detail, such as the excessive emphasis on the property of "abduction", the limitation of the criminal object and the deficiency of the existing penalty structure. Finally, it should be closely linked with the existing unreasonable existing legislation in the current situation, which will reflect the essence of the crime and conform to the original meaning of the legislation and fit the development of this crime. The crime of "trafficking in human trafficking", which is in line with the international line, is established as the crime of this crime, and then combined with the typical cases of the Supreme People's court, the amendment of the criminal law (six), (eight) and the new content of the anti domestic violence law, the new content, such as forced labor, the organization of begging, and so on, are added to the legal sentencing circumstances of this crime, and the place of the buyer is appropriately increased. It is not only in the social public opinion environment to respond to the much concern and condemnation, but also to sell more and more cases of children and children and the case of Internet trafficking. It can also achieve the perfection of the legislative system in the environment of socialist construction of the rule of law, the realization of the true criminal responsibility and punishment of the criminal law, and the protection of the right of law and judicature. Wei promotes the enhancement of national legal consciousness in the new era and the deepening of the concept of rule of law.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.34
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