| Marital rape is the act of sexual intercourse with one's spouse without the spouse's consent by violence,coercion,or compulsive means during a legitimate marriage.This is a universal and objective social phenomenon that has existed as a gray sensitive area since ancient times.However,China's law does not have a clear legal definition of marital rape,the criminal law academia has also been controversial in theory,there's no response in legislation and it is still blank in legislation.But judicial practice does not prohibit the occurrence of such cases,which has resulted in the judicial practice of different co contracting phenomenon caused by the judicial practice in a very embarrassing situation,and the authority of the law has been greatly impaired.With the vigorous development of the Western feminist movement,it has also had a profound impact on our country.The concept of equality between men and women enjoys popular support.Women's self-protection awareness is gradually increasing and women are no longer roll with the punches in face of marital rape.Marital rape is perceived as a violation of women's sexual autonomy,and marital rape has been called for by more and more people to make clear legal provisions in the way of legislation.Four viewpoints have been formed in the theoretical circle of criminal law in our country on whether marital rape should be incriminating or not,including the theory of denial,theory of affirmation,theory of guilt,and theory of eclecticism.The theory of denial believes that marital rape can not be compared with ordinary rape,because marital rape occurs during the existence of the conjugal relationship,and the husband is not the subject of rape,due to the husband's immunity offered by marriage.The theory of affirmation is affirmative to marital rape crime,marital rape conforms to the constitutive requirements of the crime of rape,and does not violate the legal principle of criminal punishment in the criminal law.The theory of guilt essentially denies the existence of marital rape,the essence of which is a negative remark.The theory of eclecticism does not fully recognize the fact that in theory of affirmation,it is believed that marital rape does not constitute marital rape in any circumstances and that rape constitutes a specific situation.The paper examines the marital rape from the four elements of the constitution of the crime.It is not difficult to find that if the marital rape constitutes a crime,two basic premises should be satisfied:Firstly,the act must take place during the period of legal marriage.Secondly,the wife must hold legal grounds to refuse to perform his obligation of cohabiting.By comparing marital rape with traditional rape,the legal characteristics of the rape are similar,but there are some differences between them,when a marital rape is criminalized,it is not only necessary to consider the causes and motives of the act,but also whether there is any greater social danger to the act or not,and the particular subject that implements the act.The theory of eclecticism recognizes the harmfulness of the act and believes it should be treated differently,the behavior that does not conform to the condition of incrimination,can not sacrifice the family harmony by blindly pursuing the crime,proactive and effective measures should be taken to resolve the contradictions.However,if the act is indeed in conformity with the conditions of incrimination,it should be incriminating,which is beneficial to combating crime and protecting the rights and interests of women.Through using literature research,this paper mainly solves the basic theoretical problems of marital rape,and then obtains some enlightenment through case analysis and appraisal of different basic theories,draws lessons from the relevant experience of extramarital marital rape legal system construction,and finally puts forward the basic system conception of rape incrimination in marriage.This paper is divided into six partsThe first part,The first part mainly expounds the definition of the concept,including the related concepts of "marital rape" and "sexual autonomy".The second part is about the causes,harms,impacts and status analysis of "marital rape" in our country.This section analyzes the causes of "marital rape" and the harms and effects that this act has on the victims and society:it introduces the development of marital rape in our country through introducing the attitude of ordinary citizens,legislation,and judicial practice towards marital rape.The third part introduces the theory of marital rape incrimination.This part mainly provides a systematic theoretical support for the crime of marital rape in the following discussion.From the debates about the crime of rape and the crime of entering into marriage in China,the four universities in China's criminal law circles has been found:the theory of denial,theory of affirmation,theory of guilt,and theory of eclecticism.Then it analyzes the similarities and differences between rape and marital rape by analyzing the elements of the crime of marital rape.The fourth part is the legal construction and enlightenment of extra-territorial marital rape,analyses the development of legislation related to rape in marriage in Hong Kong and Taiwan of Britain,the United States,Germany,France and China and RTHK,the legislation of rape incrimination in these countries and regions has a long history of legal development from negative to affirmative.After introducing the legal system construction in these countries and regions,it put forward the necessity and feasibility of criminalizing rape in marriage in our country.The fifth part is the basic system conception of rape incrimination in marriage,this part is mainly based on the second part of the causes of marital rape,the introduction of the harm and influence,as well as the third part of the analysis of related theory of marital rape,the fourth part of the experience and lessons of extra-territorial legal system construction,it puts forward the conception of some basic systems of rape in marriage in our country,including:strengthening the relevant provisions on marital rape in rape crimes,strengthening and limiting marital rape incrimination and sentencing,prescribing the prerequisites for private prosecution of marital rape,and clarifying the system of criminal reconciliation during the legal proceedings of marital rape.The sixth part is conclusion. |
PDF Full Text Request