The Research On Improving China’s Legislation Of Forcible Rape

The forcible rape is one of the most acient crime in the Human history. Sexual concept plays an influencing and determinative role on the forcible rape. And the legislation of forcible rape’s content changes consistently with the society’s main idea transition. From the acient times to the present, the phase change that the forcible rape infringes upon the Object recognition plays a determinative role on the legislation of forcible rape. The recognition of the object experienced the phases of men’s property rights, social sexual order, custom and ethics, women’s sexual rights, and the change of the recogniton of these society’s main ideas inflected the legislation of forcible rape in that period and resolved the content of its legislation article. Nowadays, our nation’s society’s main concept changes from conservation to opening and freedom. Its opening extent is far beyond the sexual concept of the time when legislateing the forcible rape. The change of the sexual concept requested stongly to reflect the legislation of the forcible rape. At the same time, there are some new questions of reality in the society, which the present legislation of forcible rape find it difficult to regulate. Also, these questions should be regulated through criminal law, and the questions revealed the defect of the present legislation of forcible rape.According to the average train of thinking:introducing a question, analyzing the problem and solving the problem. This text analyzes and researches on the reality defect of the legislation of the forcible rape, and hope to find the the way that can eliminate the defect and improve the legislation.Starting with clearly definiting the forcible rape and the connotation of forcible rape, this text believes the extend that the present public’s recognition of the rape is beyond the criminal educational circles’defining scope. The lag reflects on the legislation and makes it can not adapt to the social need. Through analysis, this text proposes that the natural characteristics of forcible rape goes against aggrieved party’s sexual independent consciousness, and the aggrieved party includes all the sexes and all the people, also the children. Through the recognition and analysis of the legislation content and social contradiction, this text finds that our nations’s forcible rape bearing reality defect, including "sexual setting" of the subject of crime’s defect in forcible rape, ignoring the defect of the masculinity and the protection for the special-sex-people’s sexual right, the criminal objective factor’s understanding scope of the sexual act is narrow to the social situation defect and including enforcing other one to have sex with another person or "Sexual assault" by oneself, or the defect that nothing to do with the rape in the marrage. Upon the present social situation, based on the social concept that influnces and decides the legislation of forcible rape, through analyzing those defects starting with the sexual concept, we can judge that the origin of these defects is the society’s main idea of the legislation period is far behind the present society’s main idea’s thinking of rape. Moreover, because of the recognition’s conservation and limit, there is no prediction of all the sexual abuse in the present reality, so it can not regulate properly through legislation.Aming at the defect beaing in our nation’s legislation, this text keeps a foothold of the influnce of the international concept’s development on each nation and district’s legislation of the forcible rape. And synthesizing each nation and district’s relevant legislation experience, it puts forward drawing from the criminal subject’s neuter of the forcible rape and the criminal object’s neuter and the legislation experience that crime object enlarges the sexual act’s defination. This is the trend of the legislation of forcible rape in present world and the trend is formed under the influence of different degrees upon the international concept’s changing from conservation to opening and freedom.The way to solve the legislation defect is to perfect the legislation and solve the problem radically. We should improve our nation’s legislation of forcible rape on the basis of according to the reality need, protecting the citizen’s sexual right equally, according to the modestly restraining spirit of of Criminal Law, drawing lessons from advanced experiences of the abroad and according with our nation’s situsation, according with the sexual concept’s development trend, which includs eminating the subject of the criminal’s "sexual setting", and put all the sexes into the criminal subjuct; it’s all people’s sexual right an not be limited to the femininity. The object of forcible rape also should include all the sexes but not only the femininity. Equal protection includs the special-sex-people. Aiming at the level of the recognation and understanding on the reality situation and our nation’s present main idea, I extend properly on the defination of the criminal object’s sexual act. During the legilation of the focible rape, the concrete articles is regulated and settled to make up the defect of the present legislation for people who force another person to do sexual act. Putting the serious rape in the marriage into the forcible rape, and having the concrete setting of judging the serious extend of rape in the marriage.The conclusion of this text is based on the synthesizing all kinds of legislation suggestions and improving ideas, which accords with the persent society’sl main concept situation and its trend of development, and accords with out nation’s society situation and its trend of development, and also it accords with the legislation articles of forcible rape.