The legal logic of judicial determination of the gang rape:along with the comment on the theory that rape is personal offense
As an aggravating punishment for rape,whether one commits the accomplished rape,gang rape itself is accomplished or attempted,and some commit the accomplished rape while others the attempted rape determines the establishment of gang rape,constituting three major issues to be solved in the judicial determination of gang rape.No consensus has been reached between the academic field and the practical operations.The substantial basis for aggravating the punishment of gang rape lies in the fact that the co-principal of the gang rape commits several acts of rape,infringing upon the homogenous autonomy of the same victim.The illegality of gang rape itself is more serious than a single rape with helper or instigator.It is also more serious than the illegality of the latter as a whole.The establishment of gang rape only requires the existence of two acts of rape and does not require that someone has completed.The rape stipulated in Paragraph 1 of Article 236 of the Criminal Law is a double-acting crime,and the realization of the purpose of rape is substitutable.Rape is not the personal offense whose connotation and extension are unclear,and this theory is also unable to solve the problem of gang rape determination.Gang rape is an aggravated offense by circumstances,which has the aggravating elements different from the basic rape,and itself has the forms of the accomplished and attempted.If a gang rape committed by two or more people fails,it is determined as the attempted;if one commits the accomplished rape,and the others are attempted,the overall gang rape is determined as the accomplished.
gang rapepersonal offenseco-principalaggravated offense by circumstances
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