“违背妇女意志”认定——以王某强奸案为例法学专业论文.docxVIP

Abstract As a traditional natural crime, rape has a large number of crime cases, which impacts the bottom line of the people and challenges the authority of the law. For its serious social danger, rape has been the focus of Chinas criminal law to combat. Among them, the violation of a womans will is the important content of the objective element of rape, is the essential characteristic of rape. Correctly identifying the perpetrator?s contrary to the will of women is the key distinction between rape and non-rape. However, Chinas current legislative model for rape does not intuitively reflect the will of women. Meanwhile, in the judicial practice, because rape cases is that complex, varied, diversified, and criminal means trend to be complex and multiple, coupled with the victims own individuality and difference, whether the perpetrator violates a woman? will is often more difficult to identify. Therefore, further study and research of the violation of a woman?s will of rape is a major issue in the field of the jurisprudence, the judiciary and even the whole of society, and the improvement of the criminal law theory and judicial practice guide has very important significance. This article is trying to elicit the existing question and disagreement in the process of identifying the violation of a womans will in the angel of “will” and “violation”, and then discuss the core disagreement from the concept of “the violation of a womans will”, sexual consent capacity of women, women resistance state and the extent of enforcement of the perpetrators action four aspects. The full text is divided into four parts: The first part is about the basic situation of the case. Taking the rape case of Wang as an example, this part is going to extend a debate on the subject that whether the perpetrator gained the woman?s consent, which elicits the focus of controversy and this research topic of the case. Namely, whether Wang violated the woman?s will and how to identify it. The second p