The Legislation Standards Of The Rape

At this stage, Both traditional rape cases and new cases of rape, the judiciary can eventually its perfect handling. However, such a perfect way is impeccable, the authors feel have to be discussed. Our judgment for rape in behavior as a standard,"violence","coercion" is a the obvious judgment based on "other methods" and "violence","coercion" similar to the method. However, in judicial practice, the criteria of rape was converted to "violating the woman’s will","violating the woman’s will" as a criterion appeared in mainstream practice, this standard is complimenting by the judicial practice. It is true,"violating the woman’s will" judge the perpetrator’s behavior constitutes rape has a unique advantage, but for the legislation of a transaction as a judicial practice, we need to consider how to do legislative standards and judicial practice standards coordination, in order to adapt to the requirements of legality.Follow the above ideas, the following sections to expand the idea of the author.Introduction section of this article describes the purpose and significance of this study, research ideas, research methods.The first part leads to the facts and the value of these two criteria. This section discusses the China identified rape two divergent views, thus described both advocates of reason, and finally leads to factual criteria and value criteria. Standards for the establishment of rape, two opposing viewpoints:"crime" and the doctrine of "violating the woman’s will". Crime behavior based on elements of the crime under the criteria identified whether the conduct constitutes rape, starting only from the behavior, examine whether the conduct of the mandatory provisions in the Criminal law."Violating the woman’s will" that the nature of the crime is a violation of the legal interests, so the constituent elements to be the real explanation. So, in the discussion of rape, we can not just stay in the elements of the crime of rape levels should also continue in-depth analysis of the nature of rape -is contrary to the will of the women. In fact, in the author’s view,"crime" from the perspective of China’s crime constitutes proposition to the clear provisions of the law as a basis for judging criteria this is a fact;"violating the woman’s will" is from a substantive point of view, to grasp the nature of the crime, which is a value judgment standard. Both the starting point is different, and the two are not in conflict, can be combined together.The second part of this article details the establishment of China’s current criminal standard (the fact that the criteria), and the significance of the standard of value judgment standard.At this stage of the crime was established standards are subjective and objective the crime established standards of unity. Crime Constitution Theory in China from both subjective and objective provision of the establishment of the crime, any crime established whether the judgment can not be divorced from the two aspects. The factual judgment standard of rape is the objective behavior of the constituent elements of the crime in our country as a starting point to expand the evaluation of the behavior. Rape facts criteria secretly fit the requirements of the principle of legality. Established under the requirements of the principle of legality of criminal standards must be the standard of judgment of the facts. However, the fact that criteria is not a panacea, and in the face of some difficult cases helpless value judgment at this time because of its adaptability feature shows its superiority. Value criteria can be corrected appropriate criteria for judging the facts, in fact criteria can not cover all crimes incriminate play a role in achieving social justice; in fact judgment standard blow too wide, they play a sin, no punishment is necessary behavior excluded.The third part of this article focuses on the construction of the system is that the type of rape. The fact judgment standard is not comprehensive requirements to establish a comprehensive type system of rape, and the value judgment standard as its complement; principle of legality clear requirements factual criteria to occupy the dominant position in the type of system. Rape type system is constituted by the typical type and atypical types of two parts. Typical types of rape in behavior for the benchmark build.The typical type of rape behavior in line with the requirements of the rape only "violence" and "coercion" two. These two types of behavior is consistent with the standard behavior of the rape. Atypical type of rape by her will left and right by the behavior of the loss of their own decision rights criteria. Compared with the typical type, atypical type of perpetrator the subjective and objective requirements are not very stringent. Atypical type of rape three paths: subjective psychological objective behavior, pure value judgments. Build the last of the type system, we must pay attention to several value of the crime situation, these three cases because they do not have the punishment necessary, therefore to be excluded.In the last of the article, the authors in this concluding that their point of view, it is based on the requirements of the principle of legality, we must do value judgment standard of clear standard was established for crime, rape in judicial practice by widespread use, but it does not have the legal punishment and clarity. In view of the great role of value judgments, we should take the form of legislation rape criteria clarified, in order to build a rape type system, so as to satisfy the principle of legality and the subjective and objective requirements of unity.