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《刑法》第236条第2款关于奸淫幼女的规定具有两种构造:其一,是第1款强奸罪的特别条款。行为人在幼女不自愿的前提下与其发生性关系,如果确实不知对方为幼女的,则应当适用一般条款(第1款),认定为强奸罪,处以通常之刑罚;倘若明知对方为幼女,则适用特别条款(第2款),认定为奸淫幼女型强奸罪,并从重处罚。其二,是不同于第1款的独立犯罪类型。即双方自愿发生性关系的,只有当行为人明知对方是不满十四周岁的幼女,方才构成奸淫幼女型强奸罪,并从重处罚;反之,确实不知对方为不满十四周岁的幼女的,不构成犯罪。以此分析《关于依法惩治性侵害未成年人犯罪的意见》第19条,则其内容整体上并无不当,但尚需对其作进一步的“补正”解读。
The provisions of article 236, paragraph 2, of the Penal Code on adulteress girl have two constructions: First, it is the special clause of the first rape crime. The perpetrator has sexual relations with the young child on his own initiative and, if he or she does not know the young girl, should apply the general clause (paragraph 1) and determine that the rape is punishable by ordinary penalties. If he or she knows that the other child is a young girl, Special provisions (paragraph 2) were applied and convicted as rape and juvenile rape and severely punished. Second, there is an independent type of crime that is different from paragraph 1. That is, the two parties voluntarily have sexual relations. Only when the perpetrator knew that the other party was a young girl under the age of fourteen had formed the crime of rape and nuisance rape and severely punished the child; on the contrary, she did not know that the young girl who was fourteen years of age did not crime. In this way, Article 19 of the Opinions on Punishing the Sexual Offenses against Minors in accordance with the Law is not unduly threatened in its entirety. However, it is still necessary to make a further interpretation on this issue.