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奸淫幼女构成犯罪应以行为人对幼女年龄的“明知”为要件,此乃我国刑法体系之主客观一致原则与罪过责任原则的应有之义和必然要求。部分学者主张对此实行严格责任的主张不仅会破坏我国刑法体系的连贯自洽性与内生和谐性,还与刑法的谦抑性与刑罚的经济性相违背。但笔者认为,有必要进一步明确“明知”的内涵:其包括“确实知道”与“推定知道”两种情形,在罪过内容上分别属于直接故意和间接故意,而后者的成立应以存在若加以注意即可避免误认的可能性为前提,包括明知可能是幼女而放任和不管其是否是幼女而决意奸淫两种情形。
The crime of adultery with young girls should be based on the “knowing” of the youngster’s age as the perpetrator, which is the necessary and necessary requirement of the subjective and objective principle of the criminal law system and the principle of criminal responsibility. Some scholars advocate that the strict liability should not only undermine the coherence, consistency and endogenous harmony of criminal law system in our country, but also contravene the modesty of criminal law and the economy of punishment. However, in my opinion, it is necessary to further clarify the connotation of “knowing ”: it includes the two cases of “do ” and “presumption of knowledge ”, which are directly and deliberately indirect and indirect The establishment should be based on the premise that there is a possibility of avoiding mistreatment if attention is paid to it, including the two cases of knowing adultery which may be young girls and whether they are young girls.