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1997年刑法典将嫖宿幼女行为单独归罪,不在按照强奸罪论处。这为后来的学者所诟病。其中的主要原因在于该罪的刑罚较之于强奸罪来说较轻,没有加重处罚的刑罚幅度。因此,学者们强烈呼吁废除该罪,改为按照强奸罪论处。但本文认为,强奸罪与嫖宿幼女二罪构成法条竞合犯,在适用时按照特殊优于一般的原则。但是确实应该通过司法解释或修改刑法的方法,在出现236条加重处罚情节时,不在按照嫖宿幼女罪而是按照强奸罪论处。
The criminal code of 1997 criminalizes the act of singling young girls exclusively and is not punished according to the crime of rape. This was later criticized by scholars. The main reason for this is that the penalty for the crime is lighter than that for rape and there is no increase in the penalty. Therefore, scholars strongly urged that the slander should be abolished instead of referring to rape. However, this article argues that the crime of rape and the crime of whoring girls and young girls constitute a criminal offense of competition and, when applicable, follow the principle of being better than the average. However, it is true that judicial interpretation or modification of the criminal law should be adopted. When there are 236 aggravating circumstances, the crime of raping girl children is not a matter of rape.