負有照護職責人員性侵罪的法益追問與適用邊界——“不被誘騙的性自決權說”之提倡

On The Probe into Legal Interest and Applicable Limits of the Crime of Sexual Assault by Personnel with Care Responsibilities: The Advocacy of 'The Theory of Sexual Self-determination without being Deceived'

負有照護職責人員性侵罪的增設並未提高性同意年齡，該罪所保護的法益仍然是性自決權。具體而言，由於《刑法》第236條之一未體現出任何強制性色彩，應將之解釋為“行為人利用非強制性的言辭勸誘使14至16周歲女性與之發生性關係”，本罪保護法益應被定位為不被誘騙的性自決權，其理論基礎在於主體間的信息差異與信任風險。基於“不被誘騙性自決權說”，本罪的非強制性行為方式不具有危險性，可以合理詮釋本罪輕緩的法定刑配置。同時，基於該說，本罪在定罪與出罪的判斷上均可遵循遞進式進路，由此既可以避免將本罪與強姦罪相混同，不會影響重罪的正當適用，也為出罪保留了合理空間。從體系化層面來講，本罪作為一種相對輕緩化、不具有強制性因素的罪名，在性犯罪中確立了強制型（不同意型）與非強制型（非真實同意型）並存的二元格局，由此彰顯出本罪的獨立意義。

The addition of the crime of sexual assault by persons with care responsibilities does not increase the age of sexual consent, and the legal interest protected by the crime is still the right of sexual self-determination. Specifically, since Article 236-1 of the Criminal Law does not reflect any mandatory color, it should be interpreted as 'the perpetrator uses non-mandatory words to induce women aged 14 to 16 to have sexual relations with them'. The protection of legal interests in this crime should be positioned as the right to self-determination without being lured, and its theoretical basis lies in the information difference and trust risk between subjects. Based on the theory of 'the right to self-determination without being deceived', the non-mandatory behavior of this crime is not dangerous, and the allocation of legal punishment with reprieve of this crime can be reasonably interpreted. At the same time, based on the theory of ' the right to self-determination without being deceived', this crime follows the progressive judgment approach in the identification and conviction judgment, which can not only avoid mixing thiscrime with the crime of rape, will not affect the legitimate application of felony, but also reserve a reasonable space for conviction. In terms of systematization, this crime, as a relatively mild and nonmandatory crime, establishes a dual pattern of the coexistence of mandatory (no consent) and non - mandatory (no genuine consent) in sexual crimes, thus highlighting the independent significance of this crime.