摘要
法社会学对于收买被拐卖的妇女罪所关涉法外因素的考察,为法教义学法内批判视角提供了有力补充。立足于政策变迁、法律经济学和地方性知识视角展开的分析,归纳出封建时代以保障地主经济为价值追求的买卖人口犯罪治理逻辑;当代人权保障价值追求下从无法可依到有法可依、从单向惩治拐卖方到双向打击买卖双方和从轻打击买方到从重打击买方的买卖人口犯罪治理逻辑转变;作为预谋性犯罪的收买妇女犯罪的预期刑罚表现与造成损害的不相称;对拐卖收买双方轻重有别的刑罚设置与供给方、需求方相互依存的供给需求规律的不相符;异化的风俗习惯对收买妇女犯罪的正向激励和乡土秩序、基层国家机关工作逻辑对收买妇女犯罪治理效果的负向削弱。立法层面应提高基本犯法定刑、增设罚金刑、将数罪并罚模式修改为想象竞合模式和删除从宽条款,以顺应政策逻辑和经济规律,司法层面应贯彻落实宽严相济刑事政策,以协调地方性知识和普适性法治,双向推动对于收买被拐卖的妇女犯罪的标本兼治。
The sociology of law’s examination of the extra-legal factors involved in the offence of buying and selling trafficked women has provided a powerful complement to the intra-legal critical perspective of legal doctrine.Based on the analyses from the perspectives of policy change,legal economics and local knowledge,the logic of the governance of the crime of buying and selling of human beings,based on the value of safeguarding the landlord’s economy during the feudal era,the logic of the governance of the crime of buying and selling of human beings,and the value of human rights,has shifted from being unable to comply with the law to having the law to comply with the law,and has changed from punishing the abductors and sellers in a one-way direction to hitting the sellers and buyers in a two-way direction,and from hitting the buyers lightly to hitting the buyers heavily.The expected performance of penalties for the crime of buying women as a premeditated crime is disproportionate to the damage caused.The differentiation of penalties for the two parties involved in abduction,trafficking and buying is incompatible with the law of supply and demand,which is based on the interdependence of supply and demand.The positive incentive provided by alienated customs and habits for the crime of buying women is negatively weakened by the rural order and the logic of the grass-roots State organs’work in the management of crimes involving the purchase of women.At the legislative level,the fixed penalty for basic offences should be increased.Fines should be added.The model of concurrent penalties should be changed to the model of imaginative competition,and leniency clauses should be deleted,in order to comply with the logic of policy and the laws of the economy.At the judicial level,the criminal policy of leniency and severity should be implemented,in order to reconcile local knowledge with the universal rule of law,and to promote the two-way approach of treating both the symptoms and the root causes of crimes of the purchase of women who have been abducted or trafficked.
作者
王振硕
WANG Zhenshuo(School of Law,Nankai University,Tianjin 300350)
出处
《中国刑警学院学报》
2024年第1期55-66,共12页
Journal of Criminal Investigation Police University of China
作者简介
王振硕(1998—),男,天津人,南开大学法学院2022级博士研究生,主要从事刑法学与法社会学研究。
