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《刑法》第236条第3款第4項将“二人以上轮奸”规定为强奸罪的加重处罚情节,故对轮奸的探讨可以建立在情节加重犯的讨论基础上,情节加重犯包括基本犯和加重情节两部分,故判断情节加重犯的既遂标准应当是在基本犯既遂的条件下还具备加重情节。如果在具备加重情节的情况下,由于犯罪分子意志以外的原因未能完全具备基本犯的构成要件时,则成立情节加重犯的未遂。轮奸的成立只要求存在2人以上实施轮流奸淫行为,不要求至少需要2人奸淫成功,奸淫未得逞者也以轮奸论处。亲手犯并不能阻碍轮奸适用共同犯罪的“部分实行全部责任”归责原则,轮奸犯罪中存在部分行为人奸淫得逞,其余奸淫未得逞者也应当认定为犯罪既遂。
Article 236, paragraph 3 (4) of the Criminal Code defines “aggravating circumstances” of rape as “gang rape of more than two persons”. Therefore, the discussion of gang rape may be based on the discussion of aggravating circumstances of the offender. The aggravating offenses include Basic crime and exacerbate the plot in two parts, so determine the circumstances of the accomplice aggravating circumstances should be in the basic accomplice also have aggravating circumstances. If, with aggravating circumstances, the elements of the basic offender are not fully met due to factors other than the will of the criminal, an attempt is made to aggravate the offense. The establishment of gang rape only requires the existence of more than two people to take turns of adultery, does not require at least 2 people to commit adultery, adultery unmanifestor also to gang rape. The crime of hand-hand-off does not prevent gang rape from applying the crime of common crime. “Partially implemented full responsibility.” The principle of attributed responsibility. Some of the perpetrators committed rape in the crime of gang rape, and the other persons who did not succeed in adultery should also be convicted of accomplice.