严格责任抑或过错责任的追问--以奸淫幼女的司法解释为视角

按照我国传统的刑法理论,奸淫幼女是故意犯罪,必须以明知幼女的年龄不满14周岁为条件,在归责原则上适用过错责任,这在理论和逻辑上是没有问题的。但是,对奸淫幼女行为适用严格责任也并无不妥,这除了因为严格责任更有利于刑法保护幼女的公共政策目标的实现以外,还因为严格责任并非我们通常理解的无过错责任,不构成对过错责任原则的悖反,而且,最高人民法院的司法解释实质上并没有从根本上排斥严格责任。

Strict Liability or Tort Liability

In accordance with the traditional criminal theories of China, carnal knowledge of a child is an intentional crime, the defendant can be found guilty and punished only when he is fully aware that the child is under the age of 14. The doctrine of liability fixation applicable to the case is called tort liability. But it is not unjust to punish the act of carnal abuse based on the doctrine of strict liability, which means the actor can be found guilty regardless of his intention at the time when he conduct the wrongdoings. It is not only because the doctrine of strict liability will be conducive to protecting young girls, but also because strict liability is not liability without fault, as what we usually think. In the judicial interpretation on the crime of carnal knowledge of a child promulgated by the Supreme Court of PRC, strict liability is not fully excluded.