海南大学学报(社会科学版)

作为强奸罪的加重处罚事由，轮奸的成立是否要有人奸淫既遂，轮奸有无既未遂，有人奸淫既遂、有人未遂应如何处置，是轮奸司法认定过程中要解决的三大问题。对此，学理和实务主张莫衷一是。加重处罚轮奸的实质依据在于轮奸共同正犯实施数个奸淫行为侵害同一被害人数个同质性自主权，轮奸行为本身的不法程度高于帮助、教唆下的单个奸淫行为，也高于后者作为共犯之整体的行为不法，轮奸的成立仅要求存在二个奸淫行为而不以有人奸淫既遂为必要。《刑法》第236条第1款规定的强奸罪是复行为犯，奸淫目的实现具有可替代性，强奸并非内涵和外延均不清晰的亲手犯，该理论也无力解决轮奸认定问题。轮奸是情节加重犯，有不同于基本强奸的加重构成要件，本身有既未遂形态。二人以上轮奸，均未得逞的，是轮奸未遂；一人既遂，其余人未遂的，整体轮奸既遂。

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.