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The criminal law that violates inside marriage is analysed

From;    Author:Stand originally


(2) , overall says for certain. Of marital rape wife form forcible rape. The main body that its reason is “ forcible rape is general main body, always reach criminal responsibility age namely, the natural person that has criminal responsibility capacity can. Marital nature also is such. Of the gender inviolable the serious content that the right is woman person right, marriage law is basic one of principles the regulation that protects woman rights and interests, point out anybody of legitimate rights and interests must not be encroached clearly. If the husband violates wife volition, adopt compulsive method to violate the sexual right of the wife, should with forcible rape punish. ”[9]

(3) , eclecticism. Any point of views that change extremely are worth deliberate. Our both neither can the marriage between buy husband and wife concerns at disregarding, since our country criminal law did not eliminate the husband and wife in the travel humanness of forcible rape,think, besides the injured party, so marital for love or money should violate wife volition only and produce sexual behavior with the wife forcibly, form forcible rape; Also cannot emphasize husband and wife overly concerning to be equal spouse concern at sexual relationship again however, be equal to concern at general creditor's rights even, think to husband of for love or money violated wife volition and all do not make crime with wife happening sexual behavior forcibly then. The conclusion of eclecticism is: Usually wife of marital illicit sexual relations is not formed, but have one of following state can form forcible rape: 1, although both sides of male and female marries in order to register, but impassible, and have not live together, also have not has sex, and the woman insists to ask to divorce, the man undertakes raping. 2, feeling of husband and wife truly already burst, and live apart for a long time, the husband undertakes raping.

To saying in the negative, a bit view of eclecticism (one) , the person that supportive overall says in the negative basically thinks: There are cohabitational right and obligation between husband and wife, this is the serious content that husband and wife concerns. " marriage law " regulation, specific person and belongings concern between lawful marital generation husband and wife, live together and sexual life is the right and obligation are equal basic content between husband and wife. Both sides of husband and wife is registered of one's own accord marry even if the affirmative sex law that compulsory to living together place makes is affirmatory, and the establish that acceptance of this kind of affirmative sex concerns as husband and wife is same, as long as during once generality expresses to put add in marital relation namely effective from beginning to end, blame classics is lawful the process won't disappear automatically. Accordingly, after marry, it is acceptability no matter live together, still live together forcibly, it is the husband disregards a wife to object even, use force and wife to have sex forcibly, all do not talk to go up the encroachment of pair of wife sex rights, the violation that does not belong to criminal law meaning to go up the rape behavior of woman volition. And, the sexual relationship inside marriage holds a lawful sex, rationality, complexity concurrently, concealment gender, durative wait for a characteristic. Identify the rape outside be engaged, it is relatively easy to obtain evidence, be like material evidence (spot of essence of life) , testimony of allegation of the injured party, witness; And the rape inside cognizance marriage, the feasibility that obtain evidence and objectivity remain to solve, not only the difficulty on judicatory operation is very great, and the stability that endangers excellent front courtyard and society directly. Summary rises even if 1, if the rape inside marriage makes crime, with respect to the stability that can destroy marital family and society. 2, admitting to be raped inside marriage is to commit a crime to make the wife threatens the man at any time with this possibly, husband of bring a false charge against sb. Additional, the rape inside marriage obtains evidence to also compare difficulty. The author thinks, these reason are via removing deliberate. When the husband that when a wife the station comes out to accuse his rapes her, the emotion that shows them then already burst, does this marriage still have stability but character? The family is a society each is small element, if if be opposite,pay no attention to is being raped inside marriage, can make more and more wives are harmed, arrive from quantitative change qualitative change, is the society stable? What the unbalance of individual justice can bring about integral order is disorder. Additional, of jural any accusation establish be mixed likely by person bring a false charge against sb circumvent, but this can be not become jural the reason that cancels a certain accusation. As to it is difficult to obtain evidence easy it is the technical issue in judicatory practice, cannot not make guilty excuse as the rape inside marriage more. But overall says to existing in the negative the following place are inappropriate:
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