The Research On Criminalization Of Stalking

In the recent revision process of China's criminal law,there has been a trend of gradual criminalization.The criminal circle has continued to expand,and criminal law's participation in social governance has become stronger.The academic circles have fiercely criticized the trend of criminalization of criminal law,and it seems somewhat inappropriate to discuss criminalization of stalking.However,in recent years,vicious cases caused by stalking have not been effectively regulated,but they have not received sufficient attention.The criminalization of criminal legislation should maintain the necessary modesty,but moderation is not decriminalization.The crime of stalking has become a trend all over the world.Under the circumstances that the danger of stalking is increasingly prominent,we should consider criminalization of stalking based on reality.The introduction mainly expounds the research background and significance of this article,and summarizes the research status about criminalization of stalking.On this basis,the research methods are summarized,and then the research innovation and research limitations of this article are briefly introduced.The first chapter is an overview about criminalization of stalking.Although the research on stalking in China's mainland is inadequate,the research on stalking outside the territory is relatively sufficient,and some countries and regions have achieved the legislative goal of criminalization.After enumerating and comparing the definition of stalking at home and abroad,first summarize the definition of stalking and its characteristics.The perpetrator's continuous repeated tracking,following,entanglement,and harassment of the victim are enough to put the victim into a state of fear and anxiety,which seriously affects the victim's daily life,which should be regarded as stalking as defined in this article.Second,referring to the classification outside the domain and combining with the actual situation in China,stalking is divided into tracking proximity,communication harassment,remote monitoring,network tracking and other types.Finally,review the legislation process about criminalization of stalking at home and abroad and observe the criminal legislation experience and lessons about criminalization of stalking.I hope that we can make criminal legislation decisions based on rational thinking instead of using cruel tragic cases as the fuse to promote legislation..The second chapter is the legitimacy about criminalization of stalking.First,review the existing justification for criminalization.What kind of behavior should be included in the category of criminalization,the most fundamental reason is to safeguard the basic rights of the people.The two core elements of the justification of criminalization are the social harm of the act and the violation of legal benefits.Secondly,through the analysis of empirical data from foreign countries and domestic referee documents,it is clarified that stalking is common and has serious social hazards.Then it analyzes the specific hazards to the victim from psychological,physical safety,and interpersonal relationships,such as mental trauma and social impairment.And economic losses.If stalking cannot be stopped in time,it may also endanger the victim's physical health and freedom of movement.Finally,the principle of legal interest protection should be adapted to social development.The concept of legal interest also shows a trend of spiritualization.The scope of legal interest is continuously expanding from the traditional material legal interest to the emerging spiritual legal interest.The legal benefits infringed by stalking are dual in nature,breaking the peaceful state of mind and body of the victim,causing the victim to fall into a sense of insecurity and fear,which not only violates the traditional legal benefits such as the right to physical health,personal freedom and property rights of the victim,but also Infringes on the victims' right to privacy,the right to live in peace and personal security.Therefore,criminalizing stalking has theoretical justification.The third chapter is the necessity about criminalization of stalking.Regarding the regulation of stalking,victims can demand compensation from the perpetrators according to civil laws,but they often receive little court support because they cannot fulfill the burden of proof;for some stalking such as intimidation and harassment,the application of public security management penalties is less difficult to suppress the re-stalking occurred;and part of the stalking included in the criminal law has already caused serious harm.Even the conviction and punishment have paid a heavy price,often the victim's life,physical health or social order.In addition,according to the applicant's personal safety protection order under the Anti-Domestic Violence Law,the court may "prohibit the respondent from harassing,following up,and contacting the applicant and his close relatives," but the applicable object is limited to family members and living outside the family.Among others,it cannot be applied to other people.Regardless of whether it is a single legal norm or a combination of criminal legal norms and non-criminal legal norms,it is difficult to perform the task of effectively regulating stalking.Therefore,stalking criminalization has practical necessity.The fourth chapter is the prospect of criminal legislation of stalking.First of all,it is clear that stalking is a daily life behavior that does not seem to cause actual harm to the victims.Criminal legislation on stalking should be more cautious.The criminal circle of stalking should be reasonably delineated and matched with appropriate punishment.Secondly,a comparative analysis of the domestic and foreign legislative models of stalking is made.It is an ideal model to formulate special laws to regulate stalking.However,considering the typical model of domestic criminalization,there are obstacles in formulating a special regulation for stalking.In accordance with the principle of cheap and practical criminal legislation,it is recommended that stalking stipulate administrative penalties and criminal penalties in the Public Security Management Punishment Law and Criminal Law respectively according to the magnitude of the harm,so as to reduce the choice of criminal legislation mode for stalking criminalization.resistance.Finally,referring to extraterritorial legislation and the actual situation of stalking types in China,it is recommended that criminal provisions of stalking be criminalized as follows: whoever stalks others without justifiable reasons,and ordered to stop and continue to perform one of the following actions many times,which will seriously affect the daily lives of victims,shall be sentenced to fixed-term imprisonment of less than three years,and may be imposed a single fine: 1.Follow the victim to grasp the trajectory of the victim's actions;2.Monitor the victim's residence,work unit,school,etc.Or install surveillance equipment;3.install surveillance equipment on the victim's vehicle,mobile phone or computer and other personal belongings;4.dial the victim's phone number,send text messages,send items,etc.against the victim's wishes multiple times;5.disclose the victim on social media,etc.and requires the victim to do things without obligation;6.other stalking sufficient to endanger the victim's daily life.The last part is the conclusion of this article.As the bottom line of morality,the criminal law should be the "inspector" and "night watchman" guarding the legal dams of the society,in order to prevent the dams of the society from being eroded by "ant nests." The stalking is a minor crime with legal benefits.Although the consequences of traditional crimes such as intentional harm are not easy to appear,long-term stalking continuously erodes the physical and mental health of the victim,and also erodes the tranquility of the victim's life,and even threatens the victims' freedom of decision and movement.The embankment of a thousand miles was destroyed in the anthill.If minor crimes cannot be prevented in a timely and effective manner,it will seriously damage the victims ' legal rights,seriously infringe on the victims' safety,and easily cause the victims to lose their trust in the law.Sooner or later,it will endanger the dam of social governance and further erode the space for social development.