出卖不满十四周岁亲生子女行为的定性

出卖不满十四周岁亲生子女行为的性质,在理论界和实务界都存在争议,主要有三种观点:不构成犯罪、构成遗弃罪、构成拐卖儿童罪。笔者认为此行为构成拐卖儿童罪。首先该行为符合拐卖儿童罪的犯罪构成;其次,符合法条竞合的原理,拐卖儿童罪与遗弃罪存在法条竞合的关系,应根据重法优于轻法的原则适用拐卖儿童罪定罪处罚。此外,《收养法》的提示性规定指引该行为的定性应适用《刑法》,而《通知》和《纪要》不具有对抗《刑法》的效力。

About the Nature of the Behavior that Parents Sell Their Own Children under the Age of Fourteen

There are many disputes about the character of the behavior that parents sell their own children under the age of fourteen.Three main standpoints are as follows: the behavior is not a crime,the behavior constitutes the crime of abandonment,and it constitutes the crime of abducing and trafficking children.This thesis supports the third opinion.The reasons are as follows: firstly,this behavior accords with the constitutive elements of crime of abducing and trafficking children;secondly,there is a relation of concurrence of articles of law between the crime of abandonment and the crime of abducing and trafficking children.According to the theory of concurrence of articles of law, the behavior should be convicted according to the principle of the severe laws are superior to the mild laws.Otherwise,the Adoption Law of China prescribes this behavior should be applied by the criminal law,for the notice and the memorandum has no effect to surpass the criminal law.