The Defects Analysis And Reconstruction Of China’s Legislation Of Rape Crime

Rape is a very old crime in the history of criminal code. In nowadays society,“rape” is one of the most important statutory crimes works on protecting citizens’personal rights. While with time goes by, types of rape crime are also changing. Rapecrimes such as: women as the subject of rape, sodomy behaviour, the issue of maritalrape crimes, have appeared in judicial practice. At the same time, Since our countrydisassembled and canceled the crime of hooliganism in the amendment of criminallaw in1997, above behaviors which could originally be included in the crime ofhooliganism now becoming no legislative prohibits, which means these kinds ofcrimes are still in legislative gap in criminal law. If this situation keeps exiting, moreserious social problems will definitely emerge. Thus, it is imperative for China toreconstruct current rape crime legislation.Based on the idea of perfecting the legislation of rape crime, according to thethinking of firstly pointing out questions, then analyzing questions and finallysolving questions, this thesis is trying to complete the argumentation of the defects ofrape crime, and the attempt of designing the whole project of reconstructing thiscrime.The first part of this thesis is an overview of the rape crime. Based on thereviewing of the original intention of the rape crime legislation, and the combing ofthe legislative concepts, this paper is trying to acknowledge people the importantplace of the rape crime in human history. Meanwhile, gives a clear understanding ofthe purpose of the rape crime legislation and clarify the relative connotations anddenotations of it.The second part is a review of current rape crime legislation in China and anargumentation of the defects of rape legislation. First of all, by retrospecting relevantlegislation of rape crime after the foundation of People’s Republic of China (1949),we can find that some modifications to the hooliganism crime in the Criminal Law(which was passed in1997) were actually induced a lot of legislation blank on sexual-related crimes. Then this paper detailed demonstrates the legislative defects onrape crime; mainly indicates the defects of the criminal object, criminal subject andthe major objectives of rape crime. Defects of the target of rape crime reflets on theabsolute “gender-setting”, which wipes male adults and male juveniles out of theprotection of the criminal law, makes personal rights of males can not be effectivelyprotected; defects of criminal subject reflects on excluding “the female” and“husband”as the subjects of rape crime, which makes related rape crimes cannot beregulated by criminal law; defects of criminal object is the sexual rights of male arebeing ignored, which induces male victims’ sexual rights hardly to be included in theobjective element of the rape crime, their personal rights are in risk.Based on the argumentation of above defects, in the following part of this thesis,the author will concern on discussing the necessary of gradually perfecting the rapecrime by reconstructing the whole constitutional structure of this crime. Legal defectscould be resolved by establishing legal interpretation and the reconstruction of thelegislation. However, on the one hand, defects of rape legislation can not solely be“sewed up” by passing legal interpretation; on the other hand, without this kind of“sewing”, more serious related social problems will emerge. Therefore, this paperwill focus on discussing the possibility of reconstructing the rape crime.On the basis of these analysis, the final section will demonstrate some specificsuggestion to the reconstruction of rape legislation. In this part, this paper will firstlygive a close view of the legislation of criminal law in Western European countriessuch as Germany, France, Italy and some other countries, search for some usefulexperiences and achievements which can benefit our own legislation. Then continuediscussing deficiencies of legislative proposals which have already been put forwardby other domestic scholars, propose the opinion of revising the it without derivingfrom its original intent. According to this train of thought, this paper will finallyillustrate the whole picture of the reconstruction project.