A Study On The Marital Rape Problem

Marital rape is that the husband uses violence, coercion or other means to force his wife for having sex behavior and against the mean of the wife during the existence of legal marriage. The criminal law of china has not explicit regulations whether the behavior of the marital rape constitutes a crime, so it will appear two different results in dealing with such behavior: crime or innocent. Based on the research results of the experts and scholars, the article tries to construct the legal system that can protect the rights of the wife and maintain the interests of the husband.The article is composed of four parts besides the introduction and conclusion: The first part: The overview of the marital rape. This section discusses four problems: (1) Introduction of the case. This part tries to lead to the topic of the marital rape using two similar but different cases of the decision; it can reflect the problems of the legislation and the judicial. (2) The concepts and characteristics of the marital rape. This part analyzes the concept of different scholars and tries to find more appropriate concept and discusses the characteristics of marital rape. (3) The different views of the properties of the marital rape. Through the introducing the different points of view about the marital rape in the different historical period, it tries to find a suitable theory system for our country today. (4) The origin of the marital rape and national situation. This part tries to analyze the historical origins and western countries' legislation, it can give suggest about the marital rape in legislation.The second part: the theoretical basis of the marital rape. This section discusses the following three questions: (1) the necessity and feasibility of the crime of the marital rape. This part analyzes the necessity and feasibility of the punishment and tries to explain the importance of the crime about the behavior of the marital rape. (2) The rights of base. This part explains the damage of the woman because of the marital rape from the sexual right, the right of the spouse and the right of cohabitation. It means that the behavior of the marital rape should been considered a crime. (3) The foundation of the value. This section discusses that the behavior of the marital rape violates the value of the law from equality, justice and order, freedom, the benefits. It discusses the necessity the crime of the behavior of the marital rape from the perspective of the value of the law.The third part: the perfection of the marital rape. This section discusses the following three questions: (1) the perfection of the substantive law. This part tries to perfect from the convicted and limitation of action about the behavior of the marital rape. (2) The perfection of the procedural law. This part discusses from prosecution, the limitation of action, criminal reconciliation and incidental civil lawsuit and protects the victim's rights. (3) The perfection of the social control. This part tries to prevent from the behavior of the marital rape and fully exert legal action of the special prevention.