Regulation By Criminal Law On Child Abuse

Frequent occurrence of high-profile child abuse cases in China has been causingwide concerns from the public during the recent years. Outrageous behaviors in suchcases, from the famous Wenling Child Abuse case in2012, to the incident of illegaluse of prescription medicine on children by a kindergarten in Xi’an earlier this year inMarch2014, incurred considerable damage and negative consequences. Child abusehas now become a worldwide problem without sufficient resolution, which requestsfor the establishment of a comprehensive and multi-dimension system, preventingchild abuses from happening by legislations, administrative regulations and socialprotection, etc. Given the necessity and important social impact of legal regulation onchild abuses, however, it has not been clearly recognized by the administrative lawsand other laws which function for prior prohibition of actions, and the flawedapplication of criminal accusations regarding child abuse in the current Criminal Lawdiminished its capability to impose a negative definition on certain behaviors of childabuse. By rendering an inductive research on the definition, form and characters ofchild abuse and an analysis on the shortage of current regulations in China, and withreference and comparison to foreign legislations, this article is expecting to providesome inspiring thoughts on the resolution of child abuse problems and establishment of a protecting system thereof, including improvements and better implement of theprefixed laws, specialized legislations on prevention of child abuse instead ofintroducing new crimes or material interpretation of current laws, improving thesanction mode regarding child abuse in China by amendment to current provisions inthe Criminal Law, etc.This article, save the Introduction and Conclusion, has three main sections:The First Section is an overall discussion on child abuse regarding i) definitionand general content of child abuse according to descriptions thereto by variousorganizations and in legislations of different countries; ii) classification of differentforms of child abuse, aiming at better application of accusation and punishment tocertain type of behaviors precisely; and iii) characteristics of child abuse whichprovide a theoretical basis for the discussion on criminal regulations.The Second Section brings out the status and insufficiency regulation on childabuse by Chinese laws, especially criminal law. No legislation specificallyfunctioning to prevent child abuse has been made in the legal system of China.Several provisions prohibiting certain child abuse behaviors can be found in theConstitution, civil laws, administrative laws and the Criminal Law to protect therights of children. However, in the non-criminal laws such as the Law of Protection ofMinors, the Public Security Administration Punishments Law, the General Principlesof the Civil Law and the Constitution, provisions in relation to protection of children’srights and prohibition of child abuse are general regulations are less efficient inprotecting children’s rights since they have no clear definition and classification ofconcepts contained in child abuse, lacking of corresponding procedures to constitutean entire system of rules and legal frame, therefore their enforceability are questioned.In the ambit of criminal legislations, general theories concerning child abuse as“crime of abuse”,“crime of intentional injury”,“crime of child molestation”,“crimeof affray”,“crime of insult” or “not guilty” will be discussed in this section to find outthe status quo of application and insufficiency of each theory. At the end of thissection the necessity and importance of criminal regulation regarding child abuse willbe discussed, expecting to bring out several advises to the completion of criminal regulation by addressing to the perniciousness and quantity of penalty of child abuse.The Third Section is mainly for proposing solutions against the legal status ofchild abuse, with reference to foreign legislations in this aspect. The proposals include:i) to enact a specialized Law of Prevention of Child Abuse, and reach ancomprehensive and multi-dimension prevention and supervision system byincorporate better implementing of prefixed laws; ii) to admit that it’s insufficient tomaintaining the status quo or introducing material interpretation to the currentprovisions in the Criminal Law, and deny the proposal of introducing “crime of childabuse” to the Criminal Law concerning the necessary power of sanction by thesupervisors, the modest restraining of the criminal law, the integrity and balance ofthe criminal legal system; and by improving the existing provisions of “crime ofabuse” in the Criminal Law by amendments, regarding reasonably expanding thesphere of the “crime of abuse”, retaining and classifying the criteria of severeviolation, setting particular aggravated offense by circumstances, enhancing statutorysentences or creating a system of restraining orders, to fulfill the aim of improvingcriminal regulations of child abuse.