| Sex has become an indispensable part of people’s life,whether for the purpose of bearing or pleasing the body and mind.However,the crime of sexual breeding has existed since ancient time.In the long process of Chinese culture of 5000 years,men have always played a leading role in the society and the leading force of the society.Influenced by the tradition of men being superior to women in feudal society,the traditional Chinese concept believes that women’s social status is low,so the rape has always focused on the protection of women’s sexual rights.However,with the establishment of New China,women’s social status has changed,and women’s thoughts have also been liberated,especially the concept of sex.There arise a series of new rape cases in the society,such as "marital rape",women rape men,men rape men and so on,which subvert people’s cognition of the rape,at the same time,men’s sexual rights have been seriously violated.In 2003,Britain made a supplementary amendment to the violation of women’s will in the rape,and other countries are also improving the system of the rape to adapt to the new problems which are brought by the development of the times to the social situation.Since the implementation of the criminal code in 1997,though there have been judicial interpretations of rape,the standard of identifying the victim’s involuntary will in rape is not clear,so there are many difficulties in identifying atypical rape cases in judicial practice.Therefore,it is very important for our country to study the atypical cases in judicial practice by referring to the advanced experience of foreign countries and analyzing the cases of judicial practice.Based on the concept and essence of rape,this paper finds that the legislation of rape in China is insufficient and defective.Through the practical cases of rape in judicial practice and the reference to the study of rape in foreign countries,this paper tries to make a comprehensive analysis of some atypical rape cases.In addition,this paper puts forward opinions on how to identify the involuntary will of the victim in several atypical rape cases.The paper is divided into five parts.The first part contains the background,purpose and significance of this research.First of all,the current legislation of rape in China is introduced,and then the relevant research theories,legislation and judicial development of rape in continental law system and Anglo-American law system.Finally,on the basis of the legislation of rape in various countries,some good aspects that can be used for reference in our country are put forward.The second part analyzes the connotation and essence of rape.First of all,the basic concept of rape is analyzed,then the essence of rape is introduced through the basic concept,and four different theories of the essence of rape are introduced,in order to understand the advantages and disadvantages of different theories,and a theory which is most suitable for Chinese judicial practice to study rape is selected.The third part summarizes and analyzes the general standards for identifying the violation of the victim’s involuntary will in the rape cases in China,including the ordinary rape cases and the cases of raping young girls under the age of 14.Different cases have different standards.On the basis of studying the general standards,the paper tries to define the standards of several atypical rape cases.The third part summarizes and analyzes the general standards for identifying the violation of the victim’s involuntary will in the rape cases in China,including the ordinary rape cases and the cases of raping young girls under the age of 14.Different cases have different standards.On the basis of studying the general standards,the paper tries to define the standards of several atypical rape cases.Against the general standard of the victim’s involuntary will,the fourth part combines the cases in the judicial practice to make an in-depth analysis of several specific issues on how to identify the victim’s involuntary will,including the identification of the victim’s subjective consciousness,the victim’s subjective cognition error,the actor’s understanding of the victim’s subjective consciousness,and the actor’s identification of several ways of behavior.In the cases of rape in improper marriage,sexual assault on men,"half loath and half consenting" type rape,sexual assault on young girls under 14 years old,and sexual intercourse with people with will defect,the fifth part combines the actual cases to analyze how to identify the victim’s involuntary will and what kind of standards should be used in judicial practice to identify the victim’s involuntary will,and puts forward opinions to help the judicial practice. |
