A Study On The Establishment Conditions Of Gang Rape

China’s criminal law clearly regards “gang rape” as a legal cause for upgrading the basic crime of rape.But,what is gang rape? What is the essence and form of expression? Does gang rape have unfinished form of crime? Is the subject of gang rape limited to men? Is one-sided gang rape established ? The criminal law and judicial interpretation of these issues are not clear.As a result,it is not only leads to great theoretical differences,but also leads to confusion in judicial application.However,a proper answer to the above questions is the premise of a correct understanding and application of gang rape,which is of great theoretical and practical significance.Based on this,this paper takes the aggravated punishment of gang rape as the research center,through the study of various related issues of the gang rape plot,in order to make a more in-depth analysis of “gang rape”as the legal punishment promotion cause,so that it can be more accurately used in China’s judicial practice.In addition to the foreword and conclusion,this paper is divided into five parts,which are respectively based on the analysis of judicial disputes and causes of gang rape,the nature of gang rape and aggravating punishment according to the specific requirements of the three conditions of the establishment of gang rape: objective behavior elements,crime subject elements and crime subjective elements,totaling about 42000 words.The main contents are as follows:The first part,the judicial dispute of gang rape and its reason analysis.Through the three guiding cases published by the Supreme Court,it leads to great differences in judicial practice and further explores the causes of this phenomenon.The second part,the analysis of the legal nature of gang rape and the basis of its aggravating punishment in criminal law.Before studying the establishment conditions of gang rape,it is necessary to define the legal nature of gang rape.This part clarifies that gang rape must be a kind of joint crime through historical interpretation and literal interpretation.Secondly,the author analyzes the core problem that the criminal law will increase the punishment of gang rape according to the main line of the whole paper,and concludes that there are two basic views on the basis of the increased punishment.The third part,constitute the objective behavior requirements of gang rape.This part mainly discusses whether at least two or more persons are needed to actuallycomplete the act of adultery,and whether the basic principles of accomplice,such as“partial practice,full responsibility”,“one person accomplished,full accomplished”need to be adhered to.First of all,this paper holds that in the case of such a huge divergence on the nature of aggravating plot in the theory of aggravating plot,we should abandon the traditional thinking of exploring whether gang rape is a conviction plot or a sentencing plot or both,and try to find another way.Secondly,under the control of the criminal law on the basis of aggravating the punishment of gang rape,according to the three reasons of maintaining the consistency of the specific provisions of the criminal law,the principle of suiting the crime to the punishment and the theory of "crime accomplished mode",it is concluded that at least two people are needed to complete the act of gang rape.Thirdly,by denying that the crime of rape is committed by one’s own hands,it is clear that it does not need all people to complete the act of adultery in person,only two or more people can actually complete it.Finally,based on the principle that the illegality of joint crime is joint and several(the principle of liability at the level of illegality),the basic position that the basic principle of joint crime must abide by is clarified.At the same time,in the case of gang rape,there is no coexistence of completed crime,attempted crime,suspension and other criminal forms.The fourth part,constitute the main requirements of gang rape.This part mainly discusses whether the criminal subjects who constitute gang rape need to have criminal responsibility ability and whether women can constitute gang rape.First of all,we should reflect on the essence of joint crime by expounding the possible problems brought by the general view of our country.Secondly,based on the perspective of comparative law,this paper makes a brief comparative analysis of four elements,three levels and two levels of crime theory system,and finally makes clear that the entity of crime is illegal and responsibility,and joint crime is an illegal form,which only solves the basic position of objective liability.In other words,joint crime solves the problem of whether the actual harm results can be attributed to the perpetrator,and whether the criminal subject has the criminal responsibility ability is a question of accountability or reproach possibility.Finally,it is clear that women can be the main body of gang rape in special circumstances,that is,in general,women can not be the main body of gang rape.However,when two or more men have actually committed adultery to the victim,women can form gang rape as accomplice.The fifth part,the specific requirements of the subjective intention of theperpetrators of gang rape.First of all,to explore the essence of gang rape intention,its reasonable connotation should be to emphasize the fact that the victim has been illegally violated by taking turns of adultery,rather than requiring the actor to complete the adultery in person.Secondly,the formation time of gang rape intention is studied.This part makes it clear that the formation time of gang rape intention may be in advance,or in the process of committing adultery,and it can not be too mechanical and dogmatic when making specific identification.Finally,it mainly studies whether the one-sided gang rape is established.On the premise of affirming that “one-sided gang rape” can be established,this paper attempts to make a reasonable interpretation of the term “joint intention” in Article 25 of the criminal law on joint crime.Under the classification of joint intention into comprehensive joint intention and unilateral joint intention,the author thinks that one-way “agreement” is also a form of joint intention,besides the common form of communication and exchange of criminal intention.In addition,by refuting the four solutions given by those who deny the establishment of “one-sided gang rape”,it is clear that it is necessary to admit that “one-sided gang rape” can be established.