收买被拐卖妇女儿童罪的定罪量刑归责探究

An Exploration of the Conviction and Sentencing Attribution of the Offence of Buying Abducted and Trafficked Women and Children

摘要: 对于收买被拐卖妇女儿童罪存在立法的宽宥化、轻罪化，司法的非实刑化、轻刑化的问题，学界试图通过探究本罪的定罪量刑来予以解决，并对此存在诸多争议，而争议焦点就在于是否应当提升本罪的法定刑。本文就将从本罪所保护的法益——人身不可买卖性以及现如今本罪的司法适用问题入手，从解释论的角度分析，将收买行为解释为了实施强奸、故意伤害、侮辱行为而实施的预备行为，将收买行为及其后续行为做总体性考察，从而使公安司法机关在处理本罪的整个过程中重视收买者的自身行为而非其他法外因素，并且激活刑法第241条第2-4款数罪并罚的条款，以此解决现今收买被拐卖妇女儿童罪所存在的诸多问题。

Abstract: As for the problem that the crime of buying trafficked women and children has been excused and misdemeanoured by the legislation, and non-substantiated and misdemeanoured by the justice, the academics have tried to solve the problem by exploring the conviction and sentence of the crime, and there are many controversies, and the focus of the controversy is on whether to raise the statutory penalty of the crime. In this paper, we will start from the legal interests protected by this crime-personal non-tradeability and the judicial application of this crime nowadays, from the perspective of interpretative analysis, will buy the act of interpretation in order to implement the act of rape, intentional injury, insult and the preparatory act, will buy the act and its subsequent behaviour to do a general investigation, so that the public security and judicial organs in dealing with the whole of this crime, the public security and judicial organs, the public security and judicial organs in dealing with the whole of this crime. This will enable the public security authorities to pay attention to the buyer’s own behaviour rather than other extrajudicial factors in the whole process of dealing with this crime, and activate the provisions of Article 241 (2-4) of the Criminal Law on concurrent penalties, so as to solve the many problems existing in the crime of buying trafficked women and children nowadays.