On The Crime Of Abuse

The revision of the criminal law in 1997 is a significant milliarium in the history of criminal justice in China, however, there still exist many problems in the matter of legislation in the judicial practice in resent years. Among these problems, the provisions of the crime of abuse in Article 260 of the Criminal law give rise to great concerns among judicial theorists and practitioners, especially, with the emergence of marriage and family problems, the increasing of family violence events and the unreasonable punishment of the family abuse behaviors, people start to doubt the reasonability of the provisions of the crime of abuse. Beginning with this point, this essay comes up with several reasonable legislative suggestions based on our own national conditions from the view of guidelines and criminal substantive law by indicating some existing problems of the provisions in its legislation and application. This essay consists of the following four parts:Chapter one: legislative backgrounds and judicial status quo. This chapter mainly states the regulations of the family abuse behaviors before national foundation. And after national foundation, against the increasing events of abusing women and children in marriage and family, the criminal law has stipulated the crime of abuse in 1979, and which was revised in 1997. This chapter briefly introduces the legislative backgrounds of the crime of abuse, and emphasizes that the provisions of the crime of abuse mainly adjust the marriage and family relations. The increasing of family violence events, passive attitudes toward judicial determination, and more cautious application of the provisions of the crime of abuse lead to the problems of less application or no application and inadequate punishments of the crime of abuse in the judicial status quo.Chapter two: the concepts of the crime of abuse and the constitutive elements of a crime. This chapter begins with the definitions of the crime of abuse and indicates essential intention of the crime of abuse depending on analyzing different understandings of the crime of abuse. It is concluded that the crime of abuse is the serious behavior which mistreats the members of family physically and mentally for a long time deliberately usually by means of violence or non-violence. This essay mainly contains four parts on aspects of the constitutive elements of a crime: first, the characteristics on the part of object primarily illustrate the adjustment of the crime of abuse to the chapter four crimes against the rights of the person and the democratic rights of citizens is the result of deep realization of the object of the crime of abuse. The violated object of the crime of abuse is quite complicated, which violates the personal rights and democratic rights of victims, and hurts the relations of the marriage and family in harmonious society at the same time. Second, the characteristics on the part of objective mainly state the diversity of means of the abuse behavior and frequency of its performance. Third, the characteristics on the part of subject mainly concerns about the range of the family members and several categories which should be included. Forth, the characteristics on the part of subjective mainly explain the crime of abuse should be direct intent subjectively and analyzes the crime purpose and motive related to the direct intent.Chapter three: the determination of the crime of abuse and its application of punishment. This chapter further analyzes the crime of abuse based on the aforementioned chapters from four aspects: the determination of the severity of circumstance is explained from the view of means, motive, and purpose, time and the object, and the results of the crime of abuse respectively combining with specific cases in order to facilitate the determination of the crime of abuse in judicial practice. On the aspect of dealing with the aggregated consequential offense, this chapter focuses on the causes of the inadequate provisions and incompatibility in application of dealing with the serious injury and death. Finally, this chapter further indicates the intention and clearly determines the extension of the crime of abuse from the connections and distinctions between the crime of abuse and the crime of abandonment and the crime of willful and malicious injury.Chapter four: the legislative inadequacy of the crime of abuse and its perfection. This chapter mainly states the inadequacy of legislation and punishment of the crime of abuse which violates the equal and just spirit of the criminal law, the contradiction of the serious circumstance and dealing with after prosecuted, and problems between the provisions and the article 232 and 234. On the inadequacy of the crime of abuse in adjusting family relations, especially on the stipulations of the family violence, there exist two different views: whether to abolish the crime of abuse and to make the crime of family violence or to reserve the crime of abuse and to revise it. After analyzing the different intentions and extensions of the family violence and abuse, the writer holds that the view of the revision and perfection of the crime of abuse is more appropriate. The purpose of this essay is to propose the suggestions on the perfection of the substantive law and sort out the provisions of the crime of abuse from the aspects of changing private prosecution into public prosecution, enhancing judicial intervention, revising the statutory sentence of the crime of abuse, and implementing heavier punishment against the behaviors abusing the minors, the disables and the olds.