| 摘要: | 本文研究目的為通過對海峽兩岸關於配偶性侵在法律上的比較，以期探尋大陸地區配偶性侵改進之道。本研究以法條檢索和判例檢索之研究工具先對海峽兩岸配偶性侵在學者觀點、法條、案例三維度進行檢索，再就海峽兩岸配偶性侵學者觀點、立法、案例進行比較，進而獲得以下研究結論：
大陸地區在配偶性侵的立法上已有較大進步，但或許是受限於社會文化亦或是為維持穩定的考慮，對於家庭內配偶受害者的個人保護，依然任重而道遠。因此，大陸地區在未來配偶性侵立法和修法上，應綜合大陸立法和社會現狀，借鑒臺灣地區關於配偶性侵立法和司法的先進做法，在以下幾個方面做出努力。
一、明確配偶性侵入罪。配偶性暴力仍然是家暴的主要表現形式，配偶性侵入罪有利於性自主權的保護以及有利於避免其他嚴重家庭犯罪，需由刑法予以規制，故配偶性侵入罪具有必要性。同時，配偶性侵入罪具有合理性，是法治思想的進步，符合國際趨勢。另外，配偶性侵入罪具有可行性，不違背罪行法定原則，現代科技亦可助力配偶性侵取證，大陸地區已具備配偶性侵入罪的可接受性。
二、罪以內的立法建議。將配偶性侵以法條的形式明確入罪，借鑒臺灣地區的立法，男女均應作為配偶性侵犯罪保護的對象以及均可成為配偶性侵犯罪實行的正犯，做到真正平等地保護男女的性自主權。在司法實踐中，明確配偶性侵構罪化無需以非正常婚姻關係為前提，避免配偶性侵入罪虛設。在罪的設計上，可設置為親告罪，並在親告罪基礎上設置但書條款，以確保配偶在遭受嚴重性侵無法自訴的情況下仍然能得到保護。在配偶性侵構罪上可設置情節加重犯、結果加重犯、結合犯，以根據不同的情形做出相應具體的刑罰。
三、罪以外的立法建議。在《反家庭暴力法》中將性暴力予以攘括，如此而來，家暴法中關於保護令的規定就都能適用於配偶性侵，起到防患未然的作用並能最大限度的保護被害人的人身安全，切實維護被害人的合法權益。同時，明確性侵者應向被害人進行民事賠償以及明確將配偶性侵歸為家庭暴力並作為訴訟離婚的法定理由之一。;This research is intended to find a way to empirically improve the laws on spousal sexual assaults in the Chinese Mainland by making a comparison of the laws on spousal sexual assaults on both sides of the Taiwan Straits. In this research, legal provision retrieval and judicial precedent retrieval are used as research tools. Scholars’ views, legal provisions and cases regarding spousal sexual assaults on both sides of the Taiwan Straits were searched first. Then scholars’ views, legislation and cases regarding spousal sexual assaults on both sides of the Taiwan Straits were compared. The following research conclusions were drawn:
The Chinese Mainland has made much progress in the legislation on spousal sexual assaults. However, perhaps due to the limitation by social culture or for the sake of maintaining stability, it still has a long way to go in terms of the personal protection for spousal victims in a family. Therefore, in respect of future legislation and amendments to laws on spousal sexual assaults, the Chinese Mainland should, based on the legislation and social status quo in the Chinese Mainland, learn from the advanced practices of legislation and administration of justice regarding spousal sexual assaults in Taiwan of China and make efforts in the following aspects.
I. Define a spousal sexual assault as a crime. Spousal sexual violence is still a main form of domestic violence. Defining a spousal sexual assault as a crime is conducive to protecting sexual autonomy and preventing other serious family crimes. Since spousal sexual assaults need to be regulated by the criminal law, it is necessary to define a spousal sexual assault as a crime. Meanwhile, defining a spousal sexual assault as a crime is reasonable, reflecting the progress of thoughts on the rule of law and being in line with the international trend. In addition, defining a spousal sexual assault as a crime is feasible and does not violate the principle of legality. Modern technology can also help obtaining evidence of spousal sexual assaults. Defining a spousal sexual assault as a crime is acceptable in the Chinese Mainland.
II. Suggestions on the legislation relevant to the crime. To define a spousal sexual assault as a crime in legal provisions, the legislation in Taiwan of China may be used for reference, i.e. both men and women should be the objects protected the crime of spousal sexual assault and can become a principal offender committing the crime of spousal sexual assault so as to truly and equally protect the sexual autonomy of men and women. In judicial practice, the crime of spousal sexual assault should not be determined on the premise of an abnormal marital relationship so as not to make the crime of spousal sexual assault exist in name only. In terms of the design of the crime, the crime handled only with complaint may be set, and a proviso clause may be set on the basis of the crime handled only with complaint to ensure that a spouse may still be protected under the condition that he/she has been sexually assaulted severely and cannot engage in private prosecution. In terms of circumstances of the crime of spousal sexual assault, aggravated offense by circumstances, aggregated consequential offense and combinative crime may be set so that the offender is subject to corresponding specific punishments in different circumstances.
III. Suggestions on the legislation irrelevant to the crime. Sexual violence is included in the Anti-Domestic Violence Law. Thus, the provisions on protective orders in the same law are applicable to spousal sexual assaults to play a role in preventing spousal sexual assaults, protect the personal safety of victims to the largest extent, and effectively safeguard the legitimate rights and interests of victims. Meanwhile, it should be made clear that a sexual assault offender is responsible for making civil compensation to the victim, and spousal sexual assault falls under the category of domestic violence and is treated as one of statutory grounds for divorce. |
