These days, many netizens are discussing just happened in Guangdong Province Shunde city together with the marital rape in law blog. In fact, as early as in the last century ninety time evening, criminal law scholars had a lively discussion of the question. In the author's opinion, whether it is in favor of, or against, it is the interpretation of criminal law legislative abolishment of criminal law, independent, and behind the interpretation of criminal law is essentially a question on the criminal law basic position. Therefore, the author had five years ago, published an article, tries to use the basic position of criminal law to discuss the problem of marital rape. Hope this paper can enlighten you upload, thinking.

 

Analysis of criminal law position of marital rape

 

[Abstract] the basic position of criminal law is a basic method and perspective analysis of criminal problems. Rape in marital problems, the basic position of different criminal law may draw conclusions based on different. In order to basic position to coordinate these two opposites, should maintain the present criminal law case, the treatment of such cases to judges, judges the discretion power in their hands, according to criminal law article13Article"Proviso"The rules, play"Proviso"Telescopic function, to balance, to the best benefit of criminal law regulation.

 

   Key word.  The basic position of criminal law The function of criminal law The nature of crime  The interpretation of criminal law

 

The criminal law article236The provisions of the first paragraph: by violence, coercion or other means to rape women, three to ten years in prison.

                               Lead  Words

 

 1999Years12Month21Judgment of Qingpu County on the Shanghai City People's court for Wang Weiming marital rape case[1]As to the criminal law scholars dropped a bomb, suddenly aroused scholars of criminal law, and even the whole society to this ancient and new topic of fierce debate.2000Years1Month12The people's court, "reported" theory version to provoke debate, then Shanghai is the "law"2000No.3As a topic, then the law journals around the country, such as the "criminal law" China magazine2001No.1Time to published articles, scholars have put forward their views on this problem. According to preliminary statistics of the China journals published in the past four years on the subject published articles, published the article altogether32Article, including22Article said support affirmative, Qingpu City Shanghai County People's court;[2]Yes7Article negative said, against the verdict;[3]Also3Article a compromise, that the normal duration in the relationship between husband and wife, if the husband to violence, coercion forced to have sex with his wife, are generally not considered rape, but if the marriage between non normal period, for example, love after marriage is not good, has been separated for years, or as in the case of, divorce court, but the court verdict is not effective, at this stage, forced sexual relations with his wife, he can rape crime, apparently, these half said the decision also support in fact[4]. In addition Shanghai "law"2000No.3Journals of a group of symposium, editors also specially arranged two positive said article[5], two negative articles[6]There is a compromise, said article[7].

Hurry, the debate has been more than four years, everything seems to have been settled, but when we look back again to review this controversy, we will find that, in fact, much of the discussion is in the (whole) law or large coverage of criminal policy science, the sociology of law. Science, under, we cannot say that this discussion has no meaning, perhaps this discussion will be comprehensive and profound.

However, marital rape is a crime of rape is ultimately a criminal law issues, if we can reduce the study field of vision, put it in the criminal law in the field of research, we can see, in fact, these arguments are different conclusion based on the standpoint of criminal law, different schools of criminal law. In our traditional criminal law, deconstruction, reconstruction of modern criminal law and criminal law in the construction process, if we can do as professor Zhang Mingkai[8], clearly shows the basic standpoint, our criminal law so, we discuss and exchange can quickly find the similarities and differences, although this will be a bit one-sided, but more profound.

This article is trying to rethink this old topic in this idea, because our ultimate goal is to let our marriage violence from rape and so on savage, let everybody can happy, happy marriage life!

A function of criminal law based on the pursuit of: disciplinary code orientation of rape

The function of criminal law, is the criminal law. German, Japanese criminal law theory is that, the criminal law has three functions, namely the behavior regulation function, legal benefit protection function and the function of human rights protection.[9]Function of criminal law in different law embodies different function, regulation function and legal benefit protection function is the realization of legal evaluation and guidance function, and the function of human rights protection is the embodiment of the prediction function of law. If the word value from a legal point of view, the first two is the pursuit of the prevention and combating the crime, in order to achieve the maintenance of social order, the protection of the social basic value idea of criminal law; the latter is the pursuit of the control of state power of punishment, to realization of the rights of criminals security, the basic values of criminal law protection of human rights. Two kinds of function of criminal law to pursue two different concept of value, and the judge as individual citizens and the country serious disputes and neutral, its mission and task is to maintain a proper balance between the two, as the German jurist Ihering's famous words:"Punishment is a double-edged sword, used properly, then the country and individual two victim". So, the judge in the support of the prosecutor accused of a crime, maintain social stability at the same time, but also support the defendant (defender) excuse to restrict the abuse indictment opinions, state power, safeguards the human rights of the accused.

In fact, discuss the criminal law circles about the marital rape is a crime of such problems, the hidden behind is the two basic functions of criminal law how to coordinate and balance problems. So, when we consider from the basic function of Criminal Law Perspective"Marital rape"Problems, we see not hard, positive that scholars emphasized the protection function of criminal law, criminal punishment by the brutal violence urged on the behavior of people's legitimate rights and interests to protect victims, and realize the maintenance of the marriage and family relations, so as to maintain the unity and harmony of the whole law and order. Because in their view, if not to criminal law and reflect the regulation of words, so will indulge crime growing and spreading, continue to condone violence within marriage, the end is not conducive to the stability of social relations. While the negative scholars emphasize more on the human rights protection mechanism, they believe that the traditional legal culture, adhere to"No rape within marriage"And"Marital husband exemption"The principles of law, that"Marital rape"The savage violence can completely condemn and attack by ethics, morality, public opinion and other non criminal law norms and customs, there is no need to pick up the criminal behavior of broadsword, to protect her husband in the marital life safety and freedom. If the marital rape to criminal punishment of words, will cause the behavior in marital sexual life"Shrinking effect",[10]But also a waste of criminal cost, violates the criminal law value pursue suppression. Moreover, the criminal law for marital rape should in the end how qualitative? So far in the science of criminal law is controversial, disputed that this case is a difficult case in criminal law, they should be in accordance with the"Presumable innocence","In favor of the defendant"Criminal law spirit, be acquitted the accused, to the basic rights of the defendant or criminal suspect.

As can be seen, two different opinions due to the criminal law function emphasizes different, highlighting two different criminal law value orientation. While the emphasis on these two different criminal law basic position is coming from scholars personal academic background and social life of observation and experience from different angles, the scholars of different academic flat and value orientation, is pregnant Chinese criminal law schools have soil and sign.

Two. Researching the essence of crime based on the disciplinary norms: content of rape

(a) the social harm and criminal law of contradiction

Social harm is the essential feature of a crime, the criminal illegality is the legal characteristics of crime, these two characteristics are consistent in most cases, socially harmful behavior generally will be stipulated in the criminal law and the criminal illegality, with criminal illegality is the general course is harmful to the society sex. However, because of the contradiction between legal abstraction and social life of the complex between, because the contradiction between the continuous change of social life stability and law. Because the laws formulated by the level of human understanding, the level of thinking and language ability limitation, may also between social harm and criminal law of contradiction.[11]In fact, this contradiction runs through every field of criminal law, especially in the legal principle of crime and punishment has become the basic principle of criminal law case, this contradiction will become more prominent and frequent.

In fact, the contradiction between social harm and criminal illegality is German, Japanese criminal law essence and form of illegal illegal uncoordinated reflected in the Chinese criminal law, we are also in the construction of criminal law, substantive rationality and formal rationality is not synchronous criminal law reflects the pursuit of. A husband wife rape can constitute criminal law"The crime of rape"Behind the debate, also implies the opposition Social Harm and criminal illegality, or is the essence of illegality and formal illegality and substantive rationality and formal rationality of opposites. The different views on the nature of crime should be based on the judge, will lead to different values of marital rape behavior in criminal law.

There is no doubt, marital rape is a very dangerous to society, a husband to his wife, physical and mental health of great destruction and persecution. Further, in the marital relationship continues to exist, if the husband violence, injury or other abuse, insult to his wife can constitute the crime of rape, and the behavior of social harmfulness is serious but does not constitute a crime, because"For women, the right of inviolability properties obviously heavier than other personality and reputation",[12]So, this is not the de jure. We can not because of both husband and wife in a marriage coat and deny the social harmfulness, that the wife of rights (cohabitation obligation) has been through voluntary marriage way and make a general positive commitment to the view itself is not wrong. But in the modern civilized society of rule by law, the exercise of this right should be to take a peaceful and rational manner, which is from primitive human social violence (private) relief for the evolution of a fundamental performance now public power civilization social peace, reasonable relief.

Moreover, should be reflected the relation between rights and obligations, rather than one (mostly male) on the other side of the force. Can say, in the Wang Weiming case, if this kind of violence Wang Weiming has no harm to the society, his wife also not in the strong ethical, moral and social public opinion pressure, have so big of courage, pick up the legal weapons to defend their legitimate rights. However, this has serious social harmfulness behavior in criminal law did not find the appropriate expression. As in the goal of interpretation of criminal law to subjective interpretation of the scholars said that, if only to"Rape"A word of the traditional interpretation of the meaning, have sex or marriage law about the combination between couples (together) the rights and obligations of the words, then, clearly this behavior does not have criminal illegal prominent, this is the most negative said to support sufficient grounds for his theory point of view.

So how to coordinate the relationship between the two, the marital rape is not only with serious social harm, but also has the criminal illegality obvious? The author thinks, the path to solve the problem lies in the interpretations of criminal law. For example, we can learn from the relevant provisions of the German, Russian criminal law, will"Rape"As the perpetrator of violence, coercion or other means, mandatory requirements and sex or forced into the side of the body behavior. But to the"Woman"A word to explain the objective premise in current criminal law are literally on, not to take"During the existence of marriage for women"Remove the specified"Woman"Outside. Of course, this interpretation work complete discretion to appoint a judge to judge handling the case, because the essence is to interpret the provisions of the criminal law in legal provisions, to find suitable case, make marital rape has criminal illegality clear, uniform and eventually achieve the social harm and criminal illegality.

(two) the theory of violating legal interests (consequence without value and norm violation) said (act without value) conflict

In the essence of the crime problem, in addition to the existing between social harm and criminal illegality, there is opposition against the interests of law and other theory, but basically reflects the law profit violation and violating norms differences. The former believe that crime is caused by dangerous life interests protected by law against or (threat), in judging the illegal behavior problems, mainly according to the behavior violating or dangerous against the interests of law, namely the result of no value. The theory of criminal law experts from GermanyBirnbaumProperty violation, was the development of binding and Lester. For example, Lester thinks, the essence of law refers to the act of"Harmful to society (anti social or non social),"Is"Infringement of social action", is"Against the interests of the law or threat".[13]The law said that is the separation of law and morality, because ethics has diversity and changeability,[14]But the punishment is a great pain, it is not ideal but not the social control means, will maintain the moral and social ethical obligations as the task of criminal law, the criminal law is not only the excessive requirements, but also in the law under the name of forcing others to accept their values. The country not to pursue a certain code of ethics by means of penalty, the nature of the criminal law is to protect law benefit. While violating norms is the opposite, that the crime or illegal essence is a violation of law or violation of law and order, in the judgment of illegality, mainly according to the evil act itself, in other words, after cutting off the harmful results, itself also has the law are not allowed to be insignificant. For example, the late German criminal classical school scholars Bi grams Meyer thought, illegal means"Incompatible with the cultural norms recognized attitude". Japan's Ono Shinichiro also said:"Substantive illegality is a violation of national law spirit, objective, the spirit, the purpose of specific normative violation."Dleto Shigehikaru of Japan is more say without mincing words out, illegal"In essence, is a violation of the law and order, is the specification of the violation of law as the basic social ethical order."In view of these scholars, the norm of criminal law is the essence of social ethics, fundamentally speaking, is the national life morality, ethics. So, in violation of the criminal law is the essence of social ethics behind violate criminal law.[15]Otherwise, how can we explain in some crimes, although with different properties are the same in the law profit violation cases charges?

As can be seen, opposition from two theory's understanding of the relationship between law and morality, the law should contain many moral content, moral norms can be what law? If we on this perspective, the marital rape is such a proposition is analysis of words which constitute the crime of rape, it is not difficult to see that, the essence of crime is the theory of violating legal interests of scholars is that marital rape behoove which constitute the crime of rape, because this kind of rape and rape behavior is decided on the rights victims of human self (the right of inviolability) and violation of personal rights and interests. Nature is holding the crime of violating norms scholars think, marital rape does not constitute the crime of rape, because the act of rape is not a violation of any specification, the right of life within marriage has been through a voluntary marriage made disposable generalization, sure commitment and marriage law and other ways, because I criminal law provisions on the crime of rape in the legislation system of logical spirit, has ruled out the possibility of a husband to his wife forced sexual behavior, logical spirit of this legislation can be reflected clearly and specifically from the provisions of the couple between the various relations between the rights and obligations of marriage law of China[16]. More importantly,"No rape within marriage","Husband exemption"This code of ethics has been China continued for thousands of years, with China's traditional view of humanistic value[17]. During the marriage, the husband to rape did not violate people's feelings about his wife, not undermine the entire social order, and the wife to accept the request of the husband is our national life moral and ethical requirements.

Can say, in the nature of criminal or illegal according to the difference in understanding and judgment, emphasizing the results without value and emphasize the behavior without value of different lead directly to different in criminal judgment of marital rape, that directly relates to whether the perpetrator of the crime, which is different from the basic position in the criminal law implementation of the embodiment of a crime.

Three. The tendency of interpretation of criminal law: punishment rules based on the tension of rape

Interpretation of criminal law is to reveal the lawmakers subjective meaning of criminal law norms (legislative intent), or to seek in the objective meaning of criminal law? This is the long debated the aim of criminal law interpretation problem. In this regard, subjective says, the interpretation of criminal law should be the goal of the legislation of criminal law is that the legislator's original intention, everything beyond legislators intent interpretation is illegal. But the objective explained that the aim of criminal law interpretation is the explanation of criminal law to clarify objectively demonstrated the meaning, not legislators criminal subjective conferred by the provisions of the criminal law. Obviously, the former is concerned with the social conditions of criminal law, emphasizes the stability and security of the law, the pursuit of the human rights legal function. Because in their view, the law to regulate people's behavior, is a reflection of social reality, the legal interpretation must be consistent with the social life, otherwise, can not give people provides guidance and prediction function, the people living in this restless jittery legal will. If allowed to go beyond the legislative intent to interpret and apply the law, will cause the abuse of the law, in this way, the rights of citizens can not guarantee. The latter is about social situation of criminal law applicable, emphasizes the justice value of the law, the pursuit of the legal protection of social order function. Because, in their view, lawmakers called intention is just an illusion, the vitality of the law is that it is the actual needs of social satisfaction, to protect the normal development of the society. If the law can not meet the practical need of society, the normal development can not protect society, law will lose its significance of existence. In order to make law to maintain the vitality, give full play to its protective function, it must be closely linked to explain social reality to clarify the meaning of law[18].

These two different interpretation of criminal law itself are related to the tension, namely the scope of application of the criminal law. If the control of the basic theory of the interpretation of criminal law, the criminal law article236In section"Woman"The interpretation of the words.[19]Obviously, the subjective interpretation that tend to be during the existence of marriage exclusion of women from the criminal law article236Stipulated"Woman"Besides, because according to China tradition or interpreted in accordance with the relevant Chinese dictionary,"No rape within marriage"So-called"Crafty", refers to the rape, including adultery and rape, also refers to non marital relationship between internal unfair both male and female sex. If the sexual life between husband and wife as"Crafty"Words, then logically there must be"Rape"And"Commit adultery"Points, i.e. if"Don't violate"Both sides will of the sexual life between husband and wife is"Commit adultery"Whereas"Rape"This is clearly not only, and"Crafty"Word meaning is completely inconsistent, but also with the general common sense of life far.[20]But the objective explained will think it about"Woman"Shall include"During the existence of marriage for women"The literal meaning, should not be the exclusion of women in the criminal law on the outside objective. In accordance with the provisions of the criminal law for itself, the criminal law does not explicitly excluded women, as the German penal code, the penal code in Russia, are specified in rape"Others"Or"Victim",[21]We are not in the traditional sense of their own, think here"Others"Or"Victim"Refers only to women, but should be interpreted as all the people beside themselves, including man and woman. Maybe some scholars think, you only will be the focus of the discussion in the"Woman"Discussion, and marital rape is a crime of rape should be concentrated in focus"Rape"The definition of the word. In fact, if we follow the basic theory of objective interpretation of criminal law to"Rape"A word of explanation, the subjective interpretation that will still think wife rape is not"Rape"On the criminal law, do not constitute"The crime of rape", this still adhere to the"Rape"The subjective meaning. So, the wife of sexual violence should be how to call? But the objective explained will still think it is criminal acts of rape, because according to the literal meaning of modern Chinese objectively, it should be"Rape"The term existence of marriage stripped coat, and interpret it as the perpetrator of violence, threats and other means and others or the victims of sex of a kind of behavior, or as the Taiwan region of China1999Years3By the "hindrance independent crime chapter" article10Article5Section a"Sexual intercourse"Definition."That fucker, a, into the behavior of others to phallic genital anal or oral cavity. Two, to guide other than the body parts or objects into the behavior of other genital anal or oral cavity".

So, whether we will concentrate on the focus in"Woman"In a word, or will it concentrated on the"Rape"In a word, the subjective interpretation and objective interpretation that will draw different conclusions, the former will think"Marital rape"Does not constitute a crime of rape; the latter believes that"Marital rape"Constitute the crime of rape.

Four. Conclusion: a basic standpoint of criminal law

Opposite the criminal law theory field basic position, directly affect our understanding and management of a crime. As the interpretation of law, especially the judge"Heart forever when full of justice, eyes constantly shuttling back and forth between facts and norms. Only this, justice, stability and aimed to realize the criminal law."[22]Therefore, specific to the marital rape is rape judgment, under the premise of the current criminal law, our vision is to continue to back and forth between facts and norms, in the understanding of the criminal law article236About rape provisions at the same time (eye specification), social harmfulness should pay attention to estimate the amount and copy the facts of the case (eye observation cases), for both can achieve the fairness of case by case, and can maintain stability and objective of criminal law.

As a criminal for beginners, I was wandering, hesitation, shuttling between two different basic position of criminal law. But in order to show their academic preferences and values, only very reluctantly what it treasures, a basic stand off them, and choose another basic position, namely in the criminal law enginery lays particular emphasis on the protection of society, in the understanding of the essence of crime tend to be against the law and social harmfulness of illegal, in no value judgment based on that result, adhere to objective interpretation in the interpretation of criminal law. So, the behavior of the marital rape should be in rape crime. Of course, the basic position of the criminal law may be just as some scholars have pointed out, is just a"It ought to be painted"And when we look, based on reality, the problem seems not so simple.[23]

Just so, the basic position of this firm's criminal law although there are deep, but relatively one-sided. Therefore, in order to pursue a more comprehensive, in order to show on another basic position of regret, and considering the ideal at the same time, don't give up on the real concern. To this, the author further claims, at present, do not need to explicitly stipulated by the criminal law act of rape within marriage, also need not do a criminal law amendment and change, but in the maintenance of the existing criminal law provisions, will deal with the case over to the judge, that judge"Hearts full of Justice"Under the influence, the discretion power in their hands, and with the criminal law article13Article about"Proviso"The rules, play"Proviso"The expansion of powerful, and strive to achieve a balance in two different criminal law position.

This is because our country not in criminal legislation in western countries, such as Germany, France, American take"Legislative qualitative, quantitative justice"The model of rule of law, but to take"Legislation both qualitative and quantitative"The model of rule of law, then, the judge can only carry out the discretion of space only"Proviso"Regulations. Because, this"Great discretion, flexible way in certain situations, or to resolve the conflict of reason and feelings"[24]The judge in the premise, emphasize the protection of society, don't ignore the protection of human rights, the pursuit of legal universal justice value at the same time, also consider the special legal value of justice, in the nature of crime to adhere to the law profit violation, but also take care of the national ethical, moral and legal emotion, in the judgment of illegality according to the emphasize results no value at the same time, no value is also appropriate to consider the behavior of the objective interpretation of criminal law, in that at the same time, also considering the subjective meaning of the provisions of the criminal law. Therefore, in this case, some"Marital rape"Will be identified as the crime of rape, such as the Wang Weiming case, and in some cases will not be considered a crime, such as the case of Bai Junfeng.[25]

Finally, also need to declare that, although the basic position in the criminal law, the author is naturally inclined to say for sure. However, the judicial authorities should take some special proceedings to this kind of case, perfect the provisions of these action depends on the legislative.

(1In the criminal procedure), although the rape crime, but because this case has certain particularity, also in the treatment was compared with the general difference between rape cases, such as a case of private prosecution form, take not hearing public way and the introduction of the court mediation mechanism[26].

(2) on the limitation of action, the law should clearly stipulate that women in marital rape report period, generally60Day, so, can encourage the victims timely complaint behavior, to safeguard their own legitimate rights.

(3In the legal process), for this type of rape case processing should be distinguished from the general rape cases, take a lighter punishment in the penalty, and support the murdered women divorce and mental compensation claims etc..

 

*"Marital rape"This statement is not accurate, this formulation have conflicts and contradictions in the legal logic, with the people's feelings is not consistent, so the"Forced sexual behavior within marriage"The formulation is more accurate. But the scholars have used this method, in order to consistently study and expression, this paper still use"Marital rape"This representation. For details please see Wang Yong: "thinking" forced sexual behavior in marriage law, carrying Chen Xingliang editor: "criminal law case", Law Press2002Year edition, No.429-430Page.

*Author: Wu (Qingshu1976-) male, Fujian province Anxi County, a lecturer of Law School of Huaqiao University, mainly engaged in the study of criminal law.

[1]Detailed case see Zhang Jun: "Wang Weiming rape case--The husband can become the subject of "the crime of rape, load the Supreme People's court criminal trial court for a criminal trial:" reference "Law Press2000Years, the2Series.

[2]For example, soup: ""Marital rape"Ethical thinking "carrier", Social Sciences Journal of Colleges of Shanxi "2001Years, the12Chen Weijun: "that period; rape within marriage in our country and the perfection of the legislation" carrier ", Journal of social science of Hunan Normal University"2001Years, the10Volume; Ji Xiangde: "rational thinking of" marital rape "Journal of Shandong Police College", load2001Years, the4Period etc..

[3]For example, Zhou Yongkun: "" the jurisprudence analysis of marital rape accusation, load "law"2000Years, the10Period; Liao Wanli: "on the criminalization of marital rape should go slow", "Journal of Yunnan University Law Edition" load2001Years, the1Period; Wang Chenxi: "the marital rape is not scientific and relevant solutions", set "Guangxi Administrative Cadre Institute of politics and law"2003Years, the18Volume; Yin Weidong: "the marital rape" carrier ", Henan Public Security College"2002Years, the5Period etc..

[4]See Liang Genlin: "in the view of criminal policy criminalization of marital rape" carrier ", law and social development"2003Years, the4Period; Zhang Yanling: "analysis" marital rape law sociology, load "Journal of Jiangsu Police Institute"2002Years, the2Period.

[5]Zhang Xianyu: "rating"No rape within marriage""; Shen Liang:" husband can constitute rape "to his wife," law "load2000Years, the3Period.

[6]Liu Xianquan: "the marriage inner"Rape"Wrong: "husband"; Shi Meitang"Rape"The wife cannot constitute rape ", set" law "2000Years, the3Period.

[7]Series: "husband divorce proceedings constitutes the possibility of" rape "law", load2000Years, the3Period.

[8]See Zhang Mingkai: "the basic position of" criminal law, China Legal Publishing House2002Year edition.

[9]See Zhang Mingkai: "the foreign criminal law compendium", Tsinghua University press1999Year edition, No.6Page.

[10]Zhang Mingkai: "the foreign criminal law compendium", Tsinghua University press1999Year edition, No.28Page.

[11]See Wang Zhengxun: "proper behavior theory", Law Press2000Year edition, No.1Page.

[12]Zhang Mingkai: "law theory", China University of Political Science and Law press2000Year edition, No.400Page.

[13]See Zhang Mingkai: "law theory", China University of Political Science and Law press2000Year edition, No.270Page.

[14]See [day] Hirano Ryuichi: "general provisions of criminal lawI", Yuhikaku Publishing1972Year edition, quoted Zhang Mingkai: "law theory", China University of Political Science and Law press2000Year edition, No.276Page.

[15]See Zhang Mingkai: "interest theory". China University of Political Science and Law press2000Year edition, No.272Page.

[16]See Su Huiyu, Yang Xingpei editor: "analysis of the criminal difficult cases" legal, publishing house of law2000Year edition, No.142Page.

[17]See Wang Yong: "thinking" forced sexual behavior in marriage law, carrying Chen Xingliang editor: "criminal law case", Law Press2002Year edition, No.437-438Page.

[18]See Zhang Mingkai,: "criminal law" (teacher reference books), publishing house of law1999Year edition, No.44Page.

[19]Maybe some scholars would say, women is not very clear, how to explain? In fact, women as a social group, in the presence of meaning (or biological significance) is very clear, no need to explain. However, in the standard sense (ethical or social sense), or with a need to explain, in the judicial interpretation of the Supreme People's court are on"Woman"The interpretation of criminal law, the statement240In section"Woman"Regardless of nationality.

[20]See Liu Xianquan: "marriage decided"Rape"Wrong "," law "load2000No.3Period, the58-59Page.

[21]See "the German penal code", translated by Feng Jun, China University of Political Science and Law press1998Year edition, No.115Page; Zhao Wei: "Russian federal criminal law", Law Press2002Year edition, No.324Page.

[22]See also: "Zhang Mingkai" to explain the principle of criminal law, Renmin University of China press2004Year edition, No.IPage.

[23]See Fu Liqing: "the rule of Facebook", China procuratorial press2004Year edition, No.197Page.

[24]Chu Huaizhi: "USA criminal law" (Second Edition), Peking University press1996Year edition, No.50Page.

[25]See Fu Liqing: "the rule of Facebook", China procuratorial press2004Year edition, No.190Page.

[26]See Liu Shoufen, Wang Qi: "theory"Marital rape"The relationship between "and Chinese culture loaded," Journal of Shandong Police College "2002No.6Period.

 

 In this paper, published in the "criminal law professor Zhao Bingzhi editor:" (review article6Volume), publishing house of law2005Version, please refer to note of sources.