摘要： 司法解释对性侵未满12周岁幼女所作的“明知”认定，仍然是主客观相统一的体现。应当体系性地理解司法解释的上下文内容，而不能单独抽取某个表述孤立看待性。侵未满12周岁幼女主观明知的司法解释是坚守实体法中的罪过原则与程序法中的合理推定相结合的产物。该解释属于推定责任而非严格责任，这一合理定位既能使其与责任主义相融合而不致产生排异现象，同时又能在秩序维护与权利保障之间实现关系均衡。

关键词: 严格责任, 推定责任, 幼女, 明知

Abstract: The latest judicial opinion,“a person who having sexual relations with a girl under the age of 12 should be deemed as ‘is fully aware of’ the girl is a young girl”, has drawn great attention to the issue whether the concept of strict liability has been established in Chinese criminal law. The mens rea principle is necessary to satisfy the basic requirement for the modern criminal law of responsibility ideology, and to determin whether the offense intentionally relies on identifying the actor's subjective awareness. Strict liability is on the decline in most countries’ criminal law, while strengthening the utilitarian value position does not prove that strict liability can survive in Chinese criminal justice. Based on the acknowledgement of the awareness of the age in the case of having sexual relations with a girl under the age of 12,  it conveys that the subjective element cannot be omitted in the Constitution of a rape crime, and it is still an embodiment of unification of objective and subjective. We should have a general comprehension of the context of the judicial opinions rather than read the expression individually. In fact, the judicial opinion mentioned above is a combination of mens rea principle in substantial law and the reasonable deduction in procedural law. Therefore, this opinion belongs to presumptive liability rather than strict liability, which reasonably corresponds to the traditional mens rea principle and engenders no rejection of any of it. Also, it keeps the balance between social order mainte- nance and right protection.

Key words: Strict Liability, Presumptive Liability, Young Girl, Awareness