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王晓杰律师|上市公司高管疑似性侵养女案的若干分析
点击次数： 更新时间：2020-04-20 15:12:04
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撰文：王晓杰律师、费嘉彬律师
近日，“山东高管鲍某被指性侵养女案”成为舆论关注的焦点事件，各方争论还在持续。根据现有的报道显示，自2015年11月涉案当事人双方开始“收养”关系（当事人鲍某已发声称并非是“收养”关系），到2019年媒体公开这一案件，期间经历了2016年初公安机关不立案，到2019年公安机关立案、撤案到再次立案。根据最新最高检发布消息称，已与公安部联合派员赴山东督导该案办理。
Recently, "Shandong corporate executive Mr. Bao was accused of sexually assaulting a female child" has become the focus of public opinion, and the debate between all parties is still continuing. According to existing reports, since the parties involved in the case began an "adoption" relationship in November 2015 (Mr. Bao, the party concerned, claimed that it was not an "adoption" relationship), to 2019, the media made the case public, during which the public security organ did not file the case at the beginning of 2016, and by 2019, the public security organ put the case on file, withdrew the case and put it on file again. According to the latest news released by the Supreme people's Procuratorate, personnel have been sent jointly with the Ministry of Public Security to Shandong province to supervise the handling of the case.当然由于本案尚在公安侦查阶段，相关案情也并未完全公布，如果案件情况确如受害人所称，那么鲍某是否构成强奸罪，本文仅就相关法律规定上予以分析。
DUE to the case is still in the stage of public security investigation, the relevant case has not been fully announced, if the case is WHAT as claimed by the victim, then whether Mr. Bao constitutes the crime of rape, this article JUST analyzes the relevant legal provisions accordingly.
根据我国刑法第236条强奸罪的规定，强奸妇女或幼女的要处三到十年有期徒刑，情节恶劣的要处十年以上有期徒刑、无期徒刑直至死刑。同时，该条文也明确规定，与不满14岁的幼女发生性关系的，不管幼女是否同意，一律是构成强奸罪，且从重处罚。刑法之所以如此规定是因为在发生性行为的过程中，幼女是没有性同意能力的，我们要限制幼女的自由，来保护她们的性权利。
According to the provisions of Article 236 of China's Criminal Law on the crime of rape, whoever rapes a woman or young girl shall be sentenced to fixed-term imprisonment of three to ten years, and if the circumstances are abominable, he shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or even death. At the same time, the provision also makes it clear that having sex with a young girl under the age of 14, regardless of whether the young girl agrees or not, constitutes a crime of rape and is given a heavier punishment. The reason for this provision in the Criminal Law is that in the process of having sex, young girls do not have the ability of sexual consent, and we SHALL restrict the freedom of young girls to protect their sexual rights.
但在本案中，根据已有公布信息来看，被害人在受到侵犯之时，已年满14周岁。因此，根据仅根据刑法第236条，不能直接认定鲍某构成强奸罪，这也是本案是否认定构成强奸罪的难点之一，同时也是被很多网友指出鲍某是处心积虑逃避法律制裁的地方。
However, in this case, according to the published information, the victim had reached the age of 14 when she was violated. Therefore, according to Article 236 of the Criminal Law alone,Mr. Bao can not be directly determined to constitute the crime of rape, which is also one of the difficulties in this case whether it constitutes the crime of rape, and it is also pointed out by many netizens that Mr. Bao is deliberately evading legal sanctions.
当然，我国司法部门也早已注意到，对于已满14周岁但未成年的少女是否就一定具有完全的性同意能力呢？如果说当受害人和犯罪人具有某种特定的关系，比如有监护和被监护的关系，或者是教师和学生之间，在这样一个特定地位施暴者跟已满14周岁的未成年少女发生关系。如果事后再去判断是否违背妇女意志、是否同意，就变得非常复杂，难以认定系暴力或者胁迫侵害。因此，在2013年10月，最高人民法院、最高人民检察院、公安部、司法部四部门联合发布了《关于依法惩治性侵害未成年人犯罪的意见》，在该意见中第21条规定，“对幼女负有特殊职责的人员与幼女发生性关系的，以强奸罪论处。对已满十四周岁的未成年女性负有特殊职责的人员，利用其优势地位或者被害人孤立无援的境地，迫使未成年被害人就范，而与其发生性关系的，以强奸罪定罪处罚。”就此，我国司法部门打了一个补丁，即使受害人已满14周岁，但仍是一个未成年的少女，如果施暴者利用其优势地位或者被害人孤立无援的境地，迫使未成年被害人就范，而与其发生性关系的，仍构成强奸罪。
Of course, the judicial department of CHINA has already noticed that for those who have reached the age of 14, they have not reach 18 years old,is it true that SHE have the ability to give full sexual consent? If there is a certain relationship between the victim and the offender, such as the relationship between guardianship and ward, or between teachers and students, in such a specific status, the abuser has sex with a minor girl who has reached the age of 14. After the event, it becomes very complicated to judge whether it is against the woman's will and consent, and it is difficult to identify it as a violation of violence or coercion.Therefore, in October 2013, the Supreme people's Court, the Supreme people's Procuratorate, the Ministry of Public Security and the Ministry of Justice jointly issuedthe opinions on punishing crimes of sexual assault against minors in accordance with the law.Article 21 of the opinion stipulates that "THOSE who have special duties to young girls who have sexual relations with young girls shall be punished as rape. THOSE who have special duties forunderage womenwho have reached the age of 14 shall take advantage of their dominant position or the situation in which the victim is isolated and helpless to force the minor victim to submit, and those who have sexual relations with them shall be convicted and punished for the crime of rape. " In this regard, the judicial department of CHINA has made a patch that even if the victim has reached the age of 14, she is still an underage girl, if the abuser takes advantage of his dominant positionor the victim's helpless situation to force the minor victim to submit, and those who have sexual relations with them still constitute the crime of rape.
横向对比，普通法系例如美国《模范刑法典》中对于性行为的年龄作出了三个年龄段，分别为10岁、16岁、21岁，而各个洲普遍立法未成年女性实现性同意的年龄也都在18周岁。对比英国2003年《性犯罪法》规定：滥用信任关系与18岁以下的人发生性行为要处以5年以下的监禁刑。英国一般的性同意年龄为16岁。大陆法系例如德国刑法第180条规定，与受自己教育、抚养或监护的未满18 岁的人发生性行为的,可以处5 年以下自由刑或罚金，其对于未成年人性同意的年龄具备法律层面的保护。因此，单从我国《关于依法惩治性侵害未成年人犯罪的意见》此规范性文件来看，笔者认为我国立法对于性同意的年龄仅以14岁为限，还是有待完善。因为在与未成年女性发生性行为时，表面上的同意不能够视为法律意义上的同意，如果当双方具有特殊的地位，那么双方之间是没有平等谈判的空间，犯罪人其实是在滥用他的优势地位，这是对弱者的一种剥削，是施暴者将丑陋的欲望以爱的名义包裹起来，将谎言用情话的外衣包裹起来，像人贩子用棒棒糖诱拐小朋友一般，将她从熟悉的家园带到蛮荒之地。我们知道如果自由不加以限制，一定会导致强者对弱者的剥削。正如关于《房思琪的初恋乐园》中所述有些毁灭，是缓慢的，渐进的；有些毁灭，却是摧枯拉朽，大厦轰倾，性侵是其中的一种，而所有关于性的暴力又都是以全社会的方式来共同完成的。
In horizontal comparison, in the common law system, such as the Model Criminal Code of the United States, there are three age groups for sexual behavior, namely, 10 years old, 16 years old and 21 years old, and the age at which underage women generally legislate to achieve sexual consent in all continents is also at the age of 18. By contrast, Britain's sexual crimes Act of 2003 stipulates that abuse of trust and having sex with people under the age of 18 is punishable by up to five years' imprisonment. The general age of sexual consent in the UK is 16.Article 180 of the civil law system, such as the German Criminal Code, provides that a person who has sex with a person under the age of 18 who is under her own education, upbringing or guardianship may be sentenced to a free penalty of not more than five years or a fine, which provides legal protection for the age of minor's sexual consent.Therefore, only from the normative document of "opinions on punishing sexual assault against minors in accordance with the law", the author thinks that the age of sexual consent in our legislation is only limited to 14 years old, which still needs to be improved. Because when having sex with an underage woman, the apparent consent cannot be regarded as consent in the legal sense. If both parties have a special status, then there is no space for equal negotiation between the two parties. In fact, the offender is abusing his dominant position, which is a kind of exploitation of the weak, in which the abuser wraps the ugly desire in the name of love and wraps the lie in the cloak of love. Like a human trafficker abducting a child with a lollipop, taking her from a familiar home to a wild place. We know that if freedom is not restricted, it will certainly lead to the exploitation of the weak by the strong. As mentioned in "Fang Siqi's Paradise of first Love", some destruction is slow and gradual, while others are decadent and decadent, and sexual assault is one of them. and all sexual violence is done together in the way of the whole society.
因此，对于未成年人，法律应当采取软加强主义，法律需要限制自由来实现保护。法律虽然没法改变人心，但是法律至少应该有所作为，对于严重的不道德行为，法律应该加以惩治。
Therefore, for minors, the law should adopt soft reinforcement, and the law needs to restrict freedom to achieve protection. Although the law can not change the heart of the people, but the law should at least do something, for serious immoral behavior, the law should be punished.
回归本案，如果侦查机关进一步调查取证后，如有更具证明力的证据，证明本案已达到迫使程度，那就要让鲍某付出应有的法律代价。
Return to this case, if the investigation organs further investigate and collect evidence, if there is more probative evidence to prove that the case has reached a degree of coercion, then it is necessary to let Mr. Bao pay the due legal price.
期待有关司法部门用严密的调查给予当事人一个公正的结果，回应社会对于正义的关注，同时呼应立法机关能够积极关注未成年女性性自由的权利限制，从立法角度根本上进行限制从而实现保护未成年女性的权利，加强对未成年人性侵的处罚力度。
It is expected that the relevant judicial departments will give the parties a fair result with a close investigation, respond to the social concern for justice, and at the same time echo that the legislature can actively pay attention to the restrictions on the sexual freedom of underage women, and fundamentally limit them from the perspective of legislation so as to protect the rights of underage women and strengthen the punishment for sexual assault of minors.
文末
本文部分言论引自罗翔老师，仅以本文呼应罗翔老师的观点。At the end of the article.
Some of the remarks in this article are quoted from teacher Luo Xiang, and this article JUST echoes teacher Luo Xiang's point of view.
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