Research In Crime Constituting Of The Inside Forcible Rape

Crime constitution of inside forcible rape, which has become quite a sensitive topic in the law educational circle and judicial circle in recent years caused a theory war between the negativism and the affirmation.The negation theory thinks that inside forcible rape happens with the existence of marital relationship so that the inside forcible rape is different from general forcible rape behavior, which cannot and should not be defined as forcible rape. On the contrary, the affirmation theory argues that the constitution of the crime inside forcible rape conforms completely to the basic prerequisites for constituting a crime and doesn't violate any of the principles on deciding a crime in criminal law. Through analysis and discussion on these two theories, I believe that inside forcible rape behavior can constitute the rape only under the condition of a certain and particular.According to the crime-constituting theories of criminal law, apart from four basic items needed for constituting a crime, inside forcible rape must satisfy two more conditions of the following: firstly, the crime corpus and victim must have the legal marital relationship; secondly, affirming to the inside rape crime should limit the condition that wife has legal reason to dismiss the cohabitation duty. Inside forcible rape and the forcible rape do have some alike features in law, but there are still some remarkable differences between the two. Therefore, in confirming a inside forcible rape, we should emphasize on investigating the time particular of behavior occurrence, in addition to considering the purpose, motive, social bane of inside forcible rape behavior and distinguish strictly the boundary of offense and non- offense, this offense and that offense.On the basis of an overall analysis and discussion on the necessity and possibility of making the inside forcible rape a crime, I mainly putforward lawmaking proposal as follows: Increasing to establish " inside forcible rape" in criminal law, adopt the way of private suit and lead into the intermediation mechanism in the crime litigation. I believe that inside forcible rape will inevitably occupy the necessary dime in the law long with the progress of the society and notional change of people as well as the increasing consciousness of rights protection and the gradual realization of a perfect legislation. Therefore, research in crime constitution of inside forcible rape do has crucial theoretic meaning as well as realistic meaning.