The Study Of Perfection Of The Legislation On Crime Of Abandonment

This thesis is entitled the Study of Perfection of the Legislation on Crime of Abandonment, which, on the legislation style of overseas countries, makes a retrospect of the history of crime of abandonment in China, while analyses the drawbacks of it and offering suggestions on amelioration to it. In the current Criminal Law of China, the concerned stipulations on abandonment don't match the new cases of abandonment and the stipulations on behaviors being too rough, the committing too ambiguous, which may not only incapable of protecting the legal interest, but against the defending of moral values of Criminal Law, as well. For this reason, the perfection on the legislation of Crime of Abandonment is very necessary. Except for the Introductions, the thesis has four chapters.The first chapter introduces the history of the Crime of Abandonment in China, tracing the historical evolutions of the Crime of Abandonment in three eras: Ancient, Modern and the People's Republic of China, while deciphering the influences on the Crime of Abandonment by the ancient criminal law of China. In the legislation in ancient China, the thesis makes a study in the texts in Qing Dynasty, Tang Dynasty and Song Dynasty. The earliest form of crime of abandonment is connected to filial disobedience, which was enlisted the most serious crimes and matched the most cruel penalties. In the law of modern times, the New Criminal Law of Da Qing, the Criminal Law of the Republic of China in 1928, 1935 can be the most representative ones. After the establishment of PRC, the law awaits reestablishing for the reason of undeveloped conditions. After periods of efforts, the Criminal Law was set in 1979, when the crime of abandonment is by and by mature through many times of amendment. The last section of the chapter analyzed the influence on the legislation crime by the culture of ancient China: on the one hand, the tradition of the law of China is always affecting the forming of law; on the second hand, the tradition of the law of China is recessively affecting the legislation in two ways, one is the main bodies of abandonment is among the members of family; the extent for sentence on crime of abandonment is comparatively short for the sake of patriarchal system.The second chapter introduces the history of the crime of abandonment. The legislation of the crime of abandonment can be traced back to Roman times, and after the Renaissance, almost all countries began to set the abandonment between special subjects as crime, but as crime among average subjects. Through the study in some typical laws of foreign countries, for example, Germany, Japan, Austria, France, Italy, Thailand and Spain and so forth, find the value of reference for the perfection of the crime of abandonment in China. As to concrete aspects, dividing details of abandoning behaviors, making comparatively detailed explanations about the targets, objects, source of obligation and the meaning of foster in crime of abandonment as well as facts in crime of abandonment, in order to facilitate the needs of modern society.The third chapter analyzed the legislation principles in the current Crime Law of China, and makes a textual research in the behaviors of crime of abandonment, retrospect the drawbacks in the current crime of abandonment. The section about crime of hindering family and marriage in the Crime Law of 1979 was moved to the 4th Chapter in the Crime Law of China, totally unchanged. The object of abandonment is related to the obligations of foster of members of family, objectively, it is the refusal of fostering the disabled, old or teenagers though duties were engaged; the behaviors being serious, while the subject is judged by the concerned stipulations of law, subjectively, the behavior should be willful, i. e., fully aware of the obligations of fostering of the young, old, disabled and others who lost the economic ability. The abandoners used to have multiple motives. In the textual research, the thesis describes a few typical cases: Crime of Abandonment by Wang Yi Min, Crime of Abandonment by the Hospital, Crime of Abandonment caused by closely related members, Crime of Abandonment by Driver, Crime of Abandonment with contracts related. According to the contradictions and segregations between the facts and the stipulations of law, the thesis would summarize the drawbacks of Crime of Abandonment as such: firstly, the contradiction between the shallow range and the wide practical facts of Crime of Abandonment; secondly, the drawbacks is hard to fulfill by current law explanation, from the view of the location of it in the Crime Law, the direct object of defense is still the private right of citizen; from the view of other objects in crimes harming families, the direct object is yet the private right of citizen; from the view of the source of the word foster, which is originated from the blood relation and marriage, the subject and object of abandonment are within members of one family, only such explanation can make put the fundamental spirit of principles of Crime Law, and propelling the new types of abandonment out of the current Crime of Abandonment. Therefore, it is not possible to explain the legislative drawbacks and thus, the perfection of law notes is badly needed.After a consolidated retrospect of the Crime of Abandonment, the perfection of the law is imminent. In the fourth chapter, the thesis offers suggestions and law notes about the Crime of Abandonment. Firstly, change the object of Abandonment to life and health rights from identification of citizens. Secondly, widen the subjects and objects of the Crime of Abandonment, for they don't need to be in the same family, that means, the obligations should not rely solely on the Marriage Law. Thirdly, broaden the source of obligation of fostering in the Crime of Abandonment. The obligation not only come from the family members, but also the obligations according to law, contracts, management and so on. The concrete source of obligation includes obligations originated from the legal stipulation, obligation of foster on the basis of legal behavior, relation of fostering on certain facts, etc. Finally, consummate the stipulations on crime obligations. According to the detailed assessing of crime, there should be differentiation in the obligations in crime. Clarify those serious behaviors and could decrease the sentence after wiping out the heavy behaviors. Increase legal foundations to aggravate sentence. There is one principle that should be obliged: the aggravated sentence must be higher than those fundamental sentence, and higher than those caused by faults while lower than sentences according to aggravated results of crime. As to management of legal sentence of abandonment among family members, the sentences should be aggravated since it has great objective damage and subjective damage, with accordance to the Crime Law of Tai Wan, China.