臺灣地區與大陸妨害性自主犯罪的立法、司法觀照

On the Difference in Infringe on Sexual Atonomy Crime in Legislation and Justice between Taiwan and Mainland

臺灣地區婦女團體性自主意識的覺醒推動了性侵害犯罪於1999年的大規模修正。性價值觀的變化使得重視個體權利的性自主權此一具體法益觀取代社會性倫理秩序此一抽象法益觀；法益觀的變革導致性交、猥褻兩種基本性侵犯罪類型概念界限的位移，也使得性交、猥褻犯罪的行為主體及行為對象予以擴大化，實現了對兩性的平等對待和保護，而“違反其意願之方法”對“致使不能抗拒”用語的取代，使性侵犯罪是對性自主權的侵害的不法本質得以在犯罪構成上具體體現出來。由於理解上的差異，司法人員對於性侵犯罪各罪犯罪構成及罪界關係均產生較大分歧。立法技術以及觀念上的不同，兩岸在性自主犯罪的規制以及司法適用上存在一些差異，在性自主權法益觀下，大陸刑法應在擴大性侵犯罪行為物件、相對明確擴張性交（奸）概念範圍、使單純利用他人不能或不知反抗之狀態而為性交或猥褻、與幼年性交之行為罪名獨立化，並有條件承認婚內強迫性交的犯罪化，嫖宿幼女實質僅侵害了幼女性自主權，該罪應予以消解而實現其向姦淫幼女犯罪的回歸。

The awakening of Taiwan womens groups sexual self consciousness promoted a large scale motion to modify the criminal law in sexual crime in 1999. the change of sexual values resulted the right of sexual autonomy which minds individual rights, as a concrete legal benefit to replace the abstract legal benefit which basised on social ethical of sex order.  This reformation brought about the tranlocation of the line between sexual intercourse and obscenity, which as two basic types of sexual crime, and the scope of the behavioral subject and object also axpanded. By this they have realized the equality treatment and protection to both man and woman. The term of “methods beyond his resist”was also substituted by the “methods against his will ”, which could easily show up the sexual autonomy is the essence of sexual crime in the constitution of crime.  Due to the different understanding, there is a deep gap between judicial personnel in the constition of each sexual crime and the relationship between them. Because the different lagislative technology and concept between Taiwan and the Mainland, they have many differences in the legislation and judicial application of sexual crime.  Under the concept of sexual autonomy, the Mainland should axpand the scope of the behavioral object of sexual crime, clear and expand the scope of the concept of sexual intercourse relatively, make the behavior of purely use of the other who can not or does not know resist and to commit sexual intercourse or obscene to be an independ crime, which also applies to sititution of the behavioral object being the younger child, maybe we also should admit the criminalization of the behavior that one of the spouse forces the other to make sexual intercourse with him during the marriage conditionlay,  the whoring only violates the sexual autonomy right of the yong female, hence the crime shoud be resolved and finally make it back to sexual crime to yonger female.