Study Of The Difficult Problems In The Identification Of Gang Rape Cases

In judicial practice,rape is a common crime,which seriously violates the physical and mental health of the victim and has serious social harmfulness.In the rape crime,a variety of circumstances of aggravated punishment are stipulated,among which the plot of gang rape has met many controversies in the process of judicial application.Among them,the judicial identification of gang rape and of attempted gang rape has caused the judicial confusion,as well as the occurrence of different cases with different sentencing,which has seriously affected the fairness and justice.This paper,from the perspective of a criminal case in judicial practice,reveals the above problems existing in this case.Analyzing and solving the problems related to this case is of great guiding significance for the handling of similar cases.This thesis is divided into four parts:Part One introduces the basic information of the case,including cause,brief,disagreement and focus of dispute.Of the four points,this part attaches great importance to the four controversies and the focus of dispute,including: 1.What are the objective elements for the establishment of gang rape? 2.Does gang rape need the joint intent of gang rapists? 3.Can different criminal forms under different subjects coexist in gang rape?Part Two elaborates legal analysis of gang-rape related problems.This part focuses on the composition of gang rape and whether different criminal forms under different subjects can coexist in gang rape.First,this part introduces the theory basis of aggravating punishment on gang rape.The author holds that the gang rape plot aggravates the punishment on the rapist,which is no doubt that the violation of gang rape is much greater than that of general rape,and at the same time in the subjective malignant degree gang rape crime is far greater than the general rape crime,and then analyzes the key following aspects: 1.women’s reputation damage by gang rape is aggravating;2.The subjective malignancy of gang rapist is aggravating;3.The destruction of women’s sexual privacy by gang rape has intensified.Second,the objective elements of what gang-rape should be is demonstrated.First of all,this part analyzes four typical views of the theoretical and practical circles,and then points out that the objective elements of gang rape should be two or more persons,who in turn commit adultery,not whether it is accomplished.Thirdly,the subject elements of gang rape are demonstrated.Fourth,the subjective elements of gang rape are elaborated.The gang rapistsmust have the intent of joint gang rape.Fifth,from the perspective of aggravated crime,it is analyzed that the criminal forms of gang-rape exist in both the attempted and accomplished form.From the theoretical perspective of joint principal offenders,different criminal forms under different subjects in gang rape cannot coexist.According to the principle of accountability of joint principal offenders,namely,“full liability for partial involvement”,all gang rapists should bear the responsibility of the final stop of rape.Part Three conducts analysis and conclusion of this case.According to the relevant legal principles of Part Two,this part analyzes the rape case committed by the Guo and the Wang.First with joint intent of gang rang,the Guo and the Wang have successively conducted rape to the female Wang,which constitutes the gang rape.Next,the two rapists committed an attempted crime.According to the imputation principle of “full liability for partial involvement” of the joint principal offender,the two persons should be liable for the final stop form of rape – “attempted crime”.When sentencing two persons,first the sentencing level shall be determined in the legal penalty of gang rape corresponding to more than 10 years of imprisonment,and then the general provisions of the criminal law to the attempted circumstances of the lighter or mitigated punishment shall be applied,and then the pronounced penalty shall be identified.Part Four discusses implications of this study.In the process of judicial identification of the gang-rape plot,the lack of corresponding judicial interpretation has led to different sentences of similar cases from time to time.In order to apply the law uniformly,it is suggested that the judicial authorities should issue relevant judicial interpretations on the identification of the gang-rape plot.