家庭暴力下受暴女性杀夫行为轻刑化研究
发布时间：2018-09-17 07:18
【摘要】：虽然关于家庭暴力这个重要的课题,学术界在理论和实践上都作了深入研究,但是关于家庭暴力引起的受暴女性犯罪这一问题却未得到充分重视,司法实践中,对此类案件的刑罚裁量存在一些问题:一是对部分受暴女性杀夫犯罪行为的量刑过重,在量刑过程中只注重犯罪结果,忽视了对犯罪原因的考察;二是相似的案例量刑差距较大,即同案不同刑;三是缺乏对如何减轻受暴女性杀夫行为刑罚的根据,使如何减轻受暴女性杀夫行为的刑罚陷入困境。之所以会出现这些问题,原因在于目前我国对这类特殊犯罪的研究不足,在审判中没有相应的法律法规可以参照。受暴女性杀夫行为犯罪对象只针对施暴者、民意有利于受暴女性、而且作为家庭暴力施暴者的被害人有明显过错,对受暴女性施以重刑与刑法的公正性、功利性、合法性不符,违背了刑罚个别化原则。我国刑法以罪责刑相适应为原则,以宽严相济的基本刑事政策指导实践,司法审判渐趋人性化、合理化,在这一趋势下,更应对受暴女性判处较轻的刑罚。在处理受暴女性杀夫这一类案件时,国外一些国家已经对受暴女性采取了轻缓化的刑罚。英美法系国家如美国、澳大利亚、加拿大法律人认为正当防卫理论本身存在性别歧视,主张将"受虐妇女综合症"专家证言作为可采证据,用来证明受暴女性杀夫行为与正当防卫之间存在关联,审判实践中,出现了很多将受暴女性杀夫行为认定为正当防卫而出罪的判决。大陆法系国家如日本、德国在刑法中引入期待可能性理论,法院可以根据有关主客观情况,确认某些因"走投无路、确因自救或拯救家人而被迫杀人"的行为属于欠缺"期待可能性"或"期待可能性较小"的行为,从而可以免除或减轻此类受暴女性杀人的刑事责任。因为与外国的社会环境和法律坏境存在差异,我们不能盲目的将国外的成熟理论引入中国,但是我们可以根据我国实际情况,借鉴其有益经验,例如可以在受暴杀夫案件的审理中邀请专家证人出庭作证,为杀夫的受暴女性刑罚的减免提供有力的证据。此外还可以借鉴期待可能性理论的精神,在刑罚裁量过程中考虑受暴女性实施适法行为的期待可能性的大小。为了统一受暴女性杀夫案件的量刑标准,立法上有必要将被害人过错以及遭受家庭暴力规定为法定从宽量刑情节,并适当放宽缓刑适用条件。司法裁量过程中,坚持整体的量刑观,邀请专家证人参加庭审对有关家庭暴力的专门知识进行解释说明。通过最高人民法院发布指导性案例等方式,来促进受暴女性杀夫案件刑罚裁量标准的统一,减轻对杀夫的受暴女性刑罚。
[Abstract]:Although the academic circles have made in-depth research on the important subject of domestic violence, both in theory and in practice, the problem of violent female crime caused by domestic violence has not been paid enough attention to. In judicial practice, There are some problems in the penalty discretion of this kind of cases: first, some violent women are given excessive punishment for the crime of killing their husbands, and only pay attention to the result of the crime in the course of sentencing, ignoring the investigation of the reasons for the crime; The other is that there is a big difference in sentencing in similar cases, that is, different punishment in the same case; third, the lack of the basis of how to reduce the punishment of violent female husband killing behavior, so that how to reduce the violent female husband killing behavior penalty into a dilemma. The reason for these problems lies in the lack of research on this kind of special crimes in our country at present, and there are no corresponding laws and regulations to refer to in the trial. The criminal object of violent female husband killing is only the perpetrator, the public opinion is favorable to the violent woman, and as the victim of domestic violence, the victim has obvious fault. The severe punishment of the violent woman is not in accordance with the justice, utilitarianism and legality of the criminal law. It violates the principle of individualization of punishment. The criminal law of our country is based on the principle of the adaptation of crime, responsibility and punishment, the practice of which is guided by the basic criminal policy of combining leniency and severity, and the judicial trial is gradually humanized and rationalized. Under this trend, the more lenient punishment should be imposed on the battered women. In dealing with the cases of violent women killing their husbands, some foreign countries have taken lenient penalties on violent women. Anglo-American legal system countries such as the United States, Australia, Canada legal people believe that there is gender discrimination in the theory of self-defense, and advocate "battered women syndrome" expert testimony as admissible evidence. It is used to prove the relationship between violent female husband killing and legitimate defense. In the trial practice, there are many judgments that consider the violent female husband killing behavior as justifiable defense. Civil law countries, such as Japan and Germany, have introduced the theory of the possibility of expectation into their criminal law. The court can confirm certain reasons for "hopelessness" according to the relevant subjective and objective circumstances. The act of being forced to kill by saving oneself or saving a family member is an act that lacks the "possibility of expectation" or "less likely to expect", thereby absolving or reducing the criminal liability of such a violent woman for murder. Because there are differences between the social environment and the legal bad environment of foreign countries, we can't blindly introduce foreign mature theories into China, but we can draw lessons from its beneficial experience according to the actual situation of our country. For example, expert witnesses can be invited to testify in a violent husband killing case, providing strong evidence for the commutation of the punishment of a violent woman who kills a husband. In addition, we can learn from the spirit of the theory of expected possibility and consider the expected possibility of the violent women to carry out the appropriate law behavior in the process of penalty discretion. In order to unify the sentencing standard of violent women killing their husbands, it is necessary to legislate the victims' fault and domestic violence as the legal lenient circumstances and relax the applicable conditions of probation. In the process of judicial discretion, we insist on the overall view of sentencing and invite expert witnesses to attend the trial to explain the expertise on domestic violence. Through the Supreme people's Court to issue instructive cases and other ways to promote the unity of the punishment standard of violent female husband killing cases and reduce the violent female punishment.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.34
本文编号：2245134
[Abstract]:Although the academic circles have made in-depth research on the important subject of domestic violence, both in theory and in practice, the problem of violent female crime caused by domestic violence has not been paid enough attention to. In judicial practice, There are some problems in the penalty discretion of this kind of cases: first, some violent women are given excessive punishment for the crime of killing their husbands, and only pay attention to the result of the crime in the course of sentencing, ignoring the investigation of the reasons for the crime; The other is that there is a big difference in sentencing in similar cases, that is, different punishment in the same case; third, the lack of the basis of how to reduce the punishment of violent female husband killing behavior, so that how to reduce the violent female husband killing behavior penalty into a dilemma. The reason for these problems lies in the lack of research on this kind of special crimes in our country at present, and there are no corresponding laws and regulations to refer to in the trial. The criminal object of violent female husband killing is only the perpetrator, the public opinion is favorable to the violent woman, and as the victim of domestic violence, the victim has obvious fault. The severe punishment of the violent woman is not in accordance with the justice, utilitarianism and legality of the criminal law. It violates the principle of individualization of punishment. The criminal law of our country is based on the principle of the adaptation of crime, responsibility and punishment, the practice of which is guided by the basic criminal policy of combining leniency and severity, and the judicial trial is gradually humanized and rationalized. Under this trend, the more lenient punishment should be imposed on the battered women. In dealing with the cases of violent women killing their husbands, some foreign countries have taken lenient penalties on violent women. Anglo-American legal system countries such as the United States, Australia, Canada legal people believe that there is gender discrimination in the theory of self-defense, and advocate "battered women syndrome" expert testimony as admissible evidence. It is used to prove the relationship between violent female husband killing and legitimate defense. In the trial practice, there are many judgments that consider the violent female husband killing behavior as justifiable defense. Civil law countries, such as Japan and Germany, have introduced the theory of the possibility of expectation into their criminal law. The court can confirm certain reasons for "hopelessness" according to the relevant subjective and objective circumstances. The act of being forced to kill by saving oneself or saving a family member is an act that lacks the "possibility of expectation" or "less likely to expect", thereby absolving or reducing the criminal liability of such a violent woman for murder. Because there are differences between the social environment and the legal bad environment of foreign countries, we can't blindly introduce foreign mature theories into China, but we can draw lessons from its beneficial experience according to the actual situation of our country. For example, expert witnesses can be invited to testify in a violent husband killing case, providing strong evidence for the commutation of the punishment of a violent woman who kills a husband. In addition, we can learn from the spirit of the theory of expected possibility and consider the expected possibility of the violent women to carry out the appropriate law behavior in the process of penalty discretion. In order to unify the sentencing standard of violent women killing their husbands, it is necessary to legislate the victims' fault and domestic violence as the legal lenient circumstances and relax the applicable conditions of probation. In the process of judicial discretion, we insist on the overall view of sentencing and invite expert witnesses to attend the trial to explain the expertise on domestic violence. Through the Supreme people's Court to issue instructive cases and other ways to promote the unity of the punishment standard of violent female husband killing cases and reduce the violent female punishment.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.34
【参考文献】
相关期刊论文 前1条
1 钱泳宏;;“受虐妇女综合症”理论对我国正当防卫制度的冲击[J];温州大学学报(社会科学版);2008年05期
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