The Research Of The Gang Rape’s Cessation Form

Gang rape is a common and controversial criminal phenomenon in juridical practice. Its cessation form is still in dispute. This paper makes a detailed analysis on whether there is a coexistence of accomplishment form and unfinished form, which is the most controversial issue in gang rape crime.The clarification of gang rape’s cessation form takes the following two issues as prerequisite: one is the establishing range of the crime, the other one is the criterion of liability in the crime, i.e. whether to insist the principle of “part performance and total reliability”. The issue that establishing range of the crime is the premise of the criterion of liability in the crime is closely related to other three issues, which may affect the establishing range of gang rape, including the basis of accumulative penalty in the crime, the objective composition whose core is objective behavioral patterns and the subjective composition of the crime. These three issues determine the establishing range and nature of gang rape, and together with the criterion of liability in the crime, determine the objective presentment of cessation form of gang rape.Except for introduction and conclusion, this paper is divided into five chapters with about 150,000 Chinese words.The first chapter focuses on the contention on cessation form of gang rape. The current contention on cessation form of gang rape, either in judicial theory or practice, is mainly whether there is a coexistence of accomplishment form and unfinished form in the crime. There are two opinions to this point: Positive Theory and Negative Theory. In positive theory, they either believe that the purposeful act in rape crime, i.e. act of rape, is irreplaceable or that rape crime is a personally committed crime and, in gang rape crime, different actors’ cessation forms are independent. They believe that only the actor personally implements perpetrating act, can the accomplishment form be established. In this case, they believe that the accomplishment form may coexist with the unfinished form in gang rape crime. In negative theory, they believe that gang rape crime is a joint crime. They insist the principle of “part performance and total reliability” and deny the possibility of coexistence of accomplishment form and unfinished form. The causes of contention on cessation form of gang rape are mainly as follow: one is the different choices of the criterion of liability in joint crime, the other one is the delimitation of establishing range of gang rape. To these points, there is no consensus between theoretical cycle and practical department. In this case, there is no unified opinion on the establishing range of gang rape, which may affect the existence range and type of unfinished form in the crime.The second chapter focuses on the judgment basis to aggravate penalty in gang rape crime. The cause of difficult judicial problems in the crime is mainly that there is no clarification of the judgment basis to aggravate penalty in the crime. From the perspective of normative jurisprudence, the basis of aggravated penalty is the deepening of behavior illegality degree, which means increased serious infringement of legal interest. For either the common rape crime or the aggravated gang rape crime, the legal interest they both protect is the right of sex freedom. However, autonomous right is not merely a right of personal freedom, but a right of personality. In addition, it is hard to judge the right of sex freedom. In this case, whether this right suffers more severe infringement in gang rape shall be judged from multi-dimensional perspectives including sociology of law. From the perspective of victimization fact, the infringement of right of sex freedom can not avoid the influence from traditional notion of moral integrity. The dehumanization and objectification caused by the feature of this infringement will certainly lead to serious damage of human dignity as well as the accompanying damage of the victim’s psychology, physiology and personal safety. These damages are the embodiment of the infringement of right of sex freedom. They are also the reason to aggravate penalty in the crime. The core connotation of the infringement of right of sex freedom is dehumanization and objectification, which ultimately reflected as the damage of privacy value and intimacy value. The fact that gang rape will aggravate the aforementioned infringement is the basis to aggravate penalty in the crime. The clarification of the judgment basis to aggravate penalty in gang rape crime will lay a theoretical foundation for the solution of contention on cessation form of gang rape.The third chapter focuses on the objective composition of gang rape crime. Objective behavioral pattern is the core of the objective composition of gang rape crime. From the perspective of semantic interpretation, there are several different conclusions. However, it’s not difficult to find that opinions saying there must be at least two or more violators accomplish the rape, or at least one violator accomplish the rape, or the gang rape is established immediately after the implementation of behavior means which based on the subject intent of gang rape are all improper from the perspectives of systematic interpretation, comparative interpretation, historical interpretation and teleological interpretation, etc. Taking judgment basis to aggravate penalty in gang rape crime and the infringement of privacy and intimacy into consideration, we should define gang rape as the act of rape implemented by at least two or more violators by turns. It does not matter whether the act of rape is accomplished.The fourth chapter focuses on the subjective composition of the crime. Gang rape is a special joint principal type of rape crime. Except for the one who actually conduct the rape act, the others shall also be judged as accomplices. The proposition that only the one who conduct the rape act can be judged as rape crime shall be abandoned. The establishment of unilateral accomplice in gang rape crime shall be under the circumstance that it physically or psychological causes another rape results. This is also a necessary condition in criterion of liability in joint crime. Gang rape of women under fourteen years’ old should be treated differently under the circumstance that the girl is voluntary. In this case, we should judge whether the gang rape established according to the actors’ fully awareness of the girl’s age.The fifth chapter focuses on the clarification of gang rape’s unfinished form. Gang rape is defined as at least two people conduct the act of rape by turns based on consensus. In this case, gang rape is the special joint principal type in rape crime. In the circumstance that the joint principal has dual character of principal offender and the accomplice and its criterion of liability abides by theory of joint act and function dominance, the liability of gang rape accomplice shall not exclude the application of principle of “part performance and total reliability”. The theory of personally committed criminal could not provide foundation for the proposition of the coexistence of accomplishment form and unfinished form in gang rape crime. However, it may lead to confusion in accomplice theory or unfair phenomenon in judicial practice. On the contrary, the insistence of principle of “part performance and total reliability” may realize the balance between and crime and punishment. In general, there is no coexistence of accomplishment form and unfinished form in gang rape crime. However, in the situation of successive joint principal,there may be coexistence of accomplishment form and unfinished form and coexistence of accomplishment form and discontinuance in gang rape crime.