A Study On Some Difficult Problems In The Application Of Judicature In Compulsory Embarrassing And Insulting

Criminal law theory and judicial practice in the controversial "Criminal Law"Article 237 mandatory obscene, insulting the crime of women in the "Criminal Law Amendment (9)" after the introduction of a major change. Compared with the original article, the amendment will be the first paragraph of this article "forced obscene" of the object of crime from "women" to "others" to expand the scope of application, while the second paragraph to increase the "or other bad plot "The situation, increased the plot of the situation of bad punishment. The purpose of the research is to clarify the relationship between obscene and insult, to coordinate the relationship between charges and counts,to propose a way to deal with the obscene behavior of special objects, to analyze how to apply the aggravating circumstances, to solve the judicial practice From the point of view of judicial practice and the interests of the broad masses of the people, in order to make the compulsory obscenity, insult to the more accurate judicial application, this article on the revised provisions of the judicial application of a number of difficult problems in a specific analysis, With a view to providing useful advice for judicial practice. In addition to the introduction and conclusion, this paper is divided into three parts.The first part is about the behavior of forced indecency and insulting crime. There is a dispute between "obscene" and "insulting" before the amendment of the crime, and the scholars of our country have "differentiated", "identity" and "compromise" three different views. As a result of the amendment to this issue is not clearly defined, this crime is still modified after the crime and the crime is not in harmony, the nature of the problem is not clear, and through the analysis of relevant cases of our judgments found that the crime in the practical application of justice In the chaos, not uniform, and this is by the "obscene"and "insult" relationship is not clear cause. Based on the current situation of legislation,from the legal protection of this crime, we should emphasize the "sexual connotation" of the nature of the behavior and make the legislation by gradually diluting the concept of"insulting women". Indecent behavior itself contains sexual abuse related to the behavior,for the mandatory nature of the criminal acts, in addition to the provisions of the Criminal Code special charges, are "forced indecency" to correct "obscene" "insult" two points Legislation flawed, so that men get equal rights protection with women.The second part is about the understanding of "others" in the crime of forced indecency and insulting. The object of this crime is changed to "others", whether it is a realistic problem that whether the spouse with the marriage relation becomes the judicial application. Taking into account the narrow sense of "rape" connotation, "obscene" on the extension of a relatively wide range of "marital forced indecency" as a special form of regulation necessary. For the different treatment of compulsory indecency "can be regarded as personal autonomy and common life obligations two different value conflicts in marriage should be through the establishment of "that "will be the right choice to the victims to choose more conducive to the protection of the legitimate rights and interests of citizens and family and social harmony and stability, in addition, increase the limit the conditions on the exercise of the rights of victims, in order to prevent the abuse of right.The third part is about the specific cognizance of aggravated punishment in the crime of forced indecency and insulting. The "mob", "in public", "other adverse circumstances" is the three aggravating circumstances, the "mob", "public" and "public places" and "cyber space" and "the other circumstances of the poor judgment and identified are analyzed. In the "mob" indecency "mob" that, "said the situation", in view of the fact that there is no clear legal provisions in "the indecency" object of punishment,which only the ringleaders for Aggravating Punishment; "in public indecency" in public places "and the" public "must have at the same time, they put forward the specific method, according to whether this crime can occur in" cyberspace "controversy, the positive attitude, from the behavior of social harmfulness and the protection of the legal interests of the" public indecency "applies to cyberspace" the necessity, of course, also must satisfy the general "public" and "public" conditions; specific judgment on "other adverse circumstances", combined with the theory of Based on the practice and the corresponding situation, and focused on the forced obscene cause serious injuries, how to deal with the situation of death.