Research On Determining The Nature Of The Behavior To Introduce To Traffic In Women And Children

Specific provisions are stated in the criminal law in this country for the crime of trafficking in women and children, the crime of buying abducted and sold women and children and so on, basically, there are laws to abide by, without unjust treatment. However, the society is always rich and colorful as well as of inexhaustible variety, and laws are static and relatively lagging. For the behaviors of trafficking in women and children and buying abducted and sold women and children etc., it is controversial for determining the nature of the behavior of middleman services both in the field of theory and that of practice.Through analyzing the following aspects with the emphasis on, the nature, social harm and independence of trafficking behavior of middleman services etc., the paper is considered that behavior of middleman services is a kind of criminal behavior which is different from trafficking and buying behaviors, but should be punished with criminal penalty, the behavior of middleman services should be separately stipulated as a crime.The paper is divided into the three parts of introduction, main body and postscript.The controversy and divergence of substantive department as well as the purpose of the paper are mainly proposed in the introduction.The body part is divided into four chapters.Chapter one is divided into five sections, starting from the legislative evolution and general situation of crimes trafficking in human beings in China and foreign countries and through comparing the legislative differences and respective characteristics concerning crimes trafficking in human beings between China and foreign countries, the deficiencies on the aspect of the crime of trafficking in women and children in the criminal law in this country are analyzed: the first is the problem of accusation, the second is the problem of criminal target, and the third is that the behavior of middleman services has not been stipulated as crime.Chapter two is divided into two sections, in which the relevant regulations concerning the crime of trafficking in women and children, the crime of buying abducted and sold women and children in the criminal law in this country are respectively discussed, as well as the conceptions, features and criminal responsibilities of the crimes of trafficking in women and children and buying abducted and sold women and children.Chapter three is the key chapter of the paper, and it is divided into five sections. In section one, from the angle of judicial practice and through analyzing cases, different determinations for the nature of the behavior of middleman services and big differences in the measurement of penalty in practice are proposed, that is, the different cognitions for the measurement of penalty of introduction behavior, and the practical question of researching on determining the nature of introduction behavior is proposed. In section two, it is mainly introduced the social harm of the behavior to introduce to traffic in women and children which makes early preparation for convicting. In section three, analysis is carried out from the aspect of instance of legislation, among which, one is analyzed from the instances of legislation which separately criminate joint offenses, it can be seen that there are instances of legislation in which certain special legislations of joint offenses are stipulated as different accusations in criminal law; the other is analyzed from the instances of legislation which separately criminate introduction behavior, it can be seen that in the criminal law and its judicial interpretation of this country, there are mainly two kinds of situations which stipulate middleman services as crime: one is to treat relevant introduction behaviors as complicity, the other is that the introduction behavior is formed a crime independently, including the crime of introducing prostitution stated in Item 359 of criminal law and the crime of introducing bribery stated in Item 392. From instances of legislation, it can be seen that there are precedents for separately treating introduction behavior as crime. In section four, the independence of introducing to traffic in women and children is analyzed. In part one of the section, it is analyzed that the independence of behavior to introduce to traffic in women and children is the result for that the crime of trafficking in human beings is disassembled in criminal law; it is indicated that in the criminal law of this country, the crime of trafficking in human beings is disassembled, and two kinds of accusations are stipulated to the both sides who traffic in human beings, buyer and seller are separately convicted and imposed penalty, which is different from the crime of trafficking in human beings stipulated in the criminal law of civil law countries. The necessary consequences caused by the crime of trafficking in human beings is disassembled in the criminal law of this country are that the behaviors of abduction, buying and middleman services stand side by side with each other and stand alone with each other. The behavior of abduction, the behavior of buying and the behavior of middleman services can be contained in the crime of trafficking in human beings. However, abduction, buying and middleman services can't be contained with each other. The three exist independently. Introduction behavior should have its own and independent constitutive elements of crime. In part two, the difference and relationship between the behavior to introduce to traffic in women and children and the crime of abducting, the crime of buying are analyzed; it is considered that there are differences between the crime of introducing to traffic and the crime of abducting, the crime of buying both on subjective aspect and objective aspect, although the three have inevitable connections on behavior, they also have essential distinction. In other words, from the joint crime theories in a broad sense, the crime of introducing to traffic is the same with the crime of buying and the crime of abducting which belong to the crime of trafficking, but from the joint crime theories in a narrow sense, the crime of introducing to traffic in women and children is not the abettor of the crime of buying and the crime of abducting. In section five, starting from the necessity and feasibility to form a crime independently for the crime of introducing to traffic in women and children, the realistic meaning and necessity for establishing the crime of introducing to traffic in women and children are analyzed. It has been proved in judicial practice that it is very necessary to make clear the independence of introduction behavior. The behavior of middleman services which is lacking in specific and clear provisions is appearing in judicial activities and judicial practices with different appearances. The behavior with same nature of crime and different results of responsibility doesn't depend on laws but on luck. The results not only destroy the dignity and unity of law, go ill with protecting the lawful rights of women and children, go ill with struggling against the crime of trafficking in women and children, but also destroy the stability of socialist legal system and the predictability of law, which make law become the thing can't be pondered, whether committing a crime or not just like gamble, only depending on luck. If things continue in this way, the seriousness of law will go blank. The loophole of legislation can be filled up by stipulating the behavior of introducing to traffic as an independent crime.In chapter four, the constitutive elements of the crime of introducing to traffic in women and children and the judicial determination of the crime of introducing to traffic in human beings are expounded and proved from the aspect of constitutive elements of crime, which indicate the distinction and relationship between the behavior to introduce to traffic in women and children and the abettor and instigator for the crime of trafficking in women and children and the crime of buying abducted and sold women and children. It is proposed that the behavior to introduce to traffic in women and children is not the complicity of the crime of trafficking in women and children and also not the complicity of the crime of buying abducted and sold women and children.In the part of conclusion, the points of view of the full paper are summarized: laws should be perfected, criminal law should be necessarily modified and supplemented so as to end the difference for the affirmation of the behavior of introducing to traffic and the chaos of legitimacy in practice caused by the imperfectness of the legislation. The conception of the crime of introducing to traffic in women and children as well as the affirmation of accusation and corresponding criminal responsibilities are proposed. And the legislative suggestion to add the crime of introducing to traffic in women and children is also proposed.