The Criminal Law Theory Of Family Violence

Hegel once pointed out in the book philosophy of law principle:"Since words began to be used to record things, family has been a stage where members perform violence." Over time, family violence problems still exists and even becomes more severe. Preventing and stopping family violence has long been the common appeal of mankind. Based on the consideration of the protection of fundamental human rights and promoting the modernization of the legal system, combining the reality of our country with the experience abroad, this article deals with family violence problems and it consists of seven parts.The first part is the introduction. Through the introduction to the present situation and characteristics of family violence, this part demonstrates the necessity of the regulation of family violence. It also points out that the criminal law, which is strict and compulsive, should be the best option to limit family violence.The second part is the origin of family violence. The occurrence of family violence is connected with feudal family values, the loss of ethics, the doer's lack of legal sense and the indifference of the society. It is also affected by social changes,living pressure, income gap, the individual personality and judicial loss.The third part is the definition of family violence. The precise definition of family violence is the theory basis of the study of the criminal law. Through the investigation of international organizations, and laws on family violence in the world and in China, it is concluded that family violence refers to the illegal behavior between the spouse, parents, children or other close relatives, which harms or threatens to harm the body, spirit, sex or property.The fourth part is the constitution and determination of family violence. The criteria should be whether family violence meets the requirements for judging a normal crime. In the act of marital rape, it is generally believed that in a lawful marriage, if the husband forces the wife to have sex, it should not be defined as rape, But in special circumstances, it may form rape or other crimes. As to the abusing and malicious injury, they should be distinguished according to their obvious conduct, the relationship between the doer and the victim and subjective intention.The fifth part is criminal responsibility. Family violence crime shall be given a heavier punishment, but should take the circumstances for liberal punishment. On the justifiable defense, the criminal law should be strictly applied. In "retributive violence" sentencing, the doer should be punished relatively lightly.The sixth part is the improvement of family violence criminal legislation. The present criminal legislation has two weaknesses. Family violence crime has not been specifically listed. The other is that related regulation system is not yet perfect. This part lists fives pieces of advice on legislation:adding family violence crime adjusting the criteria of punishment constructing criminal punishment standard combining public prosecution with private prosecution, increasing of family violence qualification penalty, and so on.The seventh part is the conclusion. We should fully consider the difference between family violence and social violence. Only within the basic principles of criminal law, can we protect the rights of the victims to the fullest extent, and can we better define the criminal responsibility of family violence.Through these, criminal law can fully perform the purpose of guiding, thus reducing family violence.