On Criminal Regulation To Family Violence

In China, family violence is a concept pushed out by international trend.Influenced by traditional culture, notions as well as the feature of privacy in familyfield, the public and government departments have not attached enough importance tofamily violence, let alone upgrade it to the level of crime. In theoretic field, almost allworks analyzes family violence from aspects of psychology, sociology as well ascriminology, and few from the aspect of criminal law. However, the harmfulness offamily violence is great and obvious: it heavily infringes family members'personalrights, does great harm to family integrity and harmony, and endangers social stability.Faced with the increasingly stronger trend of family violence, the criminal law, as thelast protective line, shall exert its due functions to the full under the precondition ofinsisting on modesty principle.The article is divided into four parts:The first part mainly elaborates the concept of family violence and the constitutiveelements of family violence crimes. The article redefines family violence throughanalysis to the definition of family violence given by concerned judicialinterpretations of the Marriage Law. From the aspect of constitutive elements, on theelement of subject, the article holds the viewpoint that it is not suitable to make aexpand interpretation on"family members", which should limit to relatives withincertain scope. On the objective element, the article carries out the statement from the following two parts: the difference between family violence and common socialviolence, the difference of"violence"in family violence crimes and that of in othercrimes. On the subjective element, the article considers that the content of intent infamily violence crimes, mainly out of torture, is highly generality and complexity.The second part mainly introduces the status quo of family violence and analyzespotential causes. As to the status quo, on one hand, family violence has become aworldwide problem and increasingly more serious; on the other hand, the punishment,especially criminal punishment, is far away from enough. As to the causes, familyviolence is the product of multi-elements intra-functioned together. Therefore, thearticle mainly discusses the causes from multi-aspects as culture, humanity, socialenvironment and economy.The third part focuses on the substantive part of the criminal regulation to familyviolence crimes, mainly including the scope of crimes, conviction and sentence. As tothe set of the scope of crimes, based on the related theories and operability, the articleholds that family violence shall not be excessively criminalized, and there is no needto establish a crime named family violence crime. As to the conviction, the articleholds that we shall attach importance to the principle as well as the flexibility, with themode of"legislature defines the nature and defines the sentence"as the principle andwith judicial interpretations as the supplementary, and then analyzes a typical crime infamily violence crimes ----the crime of maltreatment. As to sentence, in principle,criminals of family violence crimes deserve a heavier punishment, but specificcircumstances of sentencing, such as victims'fault, psychopathic personality andcriminal motives, shall also be taken into consideration.The fourth part discusses on the procedural part of the criminal regulation to familyviolence crimes, covering main parts of criminal procedure, such as investigation,prosecution and trial. As to front-loading procedure, the article highlights theintervention of police right to family violence. As to litigation mode, the article insistson the mode of"with self litigation as principle and with public prosecution assupplementary", and establishes the system of"victims'mandatory prosecution".Meanwhile, because of the specialty of family violence crimes, we can introduce the notion of restorative judicial and criminal reconciliation into criminal procedure, butshould set a strict standard to the applicable stage, scope and procedure so as toeffectively protect victims'interest.