On The Crime Of Maltreating Family Members

This paper can be divided into 4 parts. The first part is about the legislative evolution of the crime of maltreating family members, in particular, it has discussed stipulations with respect to such crime in the Criminal Laws of 1979 and 1997, as well as in Amendment(IX) to the Criminal Law of the People's Republic of China. At the first stage, the crime of maltreating family members only exists in the written policy until 1979 when such crime is included into the marriage and family related crimes. At the second stage, with more advanced legislative technique, the marriage and family related crimes as contained in the Criminal Law of 1979 are included into the Criminal Law of 1997 as the crime of infringing upon the personal rights and democratic rights of citizens. At the third stage, along with the development of the times, the crime of maltreating family members has caused a debate in the academic circles about its subject, circumstance, statutory sentence, prosecution mode and whether or not there is a need to establish a new crime name, thereby the call for a reform is pressing. The enacted Amendment(IX) to the Criminal Law of the People's Republic of China has newly changed the prosecution mode of such crime from “reported and prosecuted” to mainly in the form of private prosecution but supplemented by public prosecution. In addition to that, the crime of maltreating persons under guardianship or caregivers has been newly established.The second part is about the constitution of the crime of maltreating family members, wherein the basic constitution and aggravating constitution are included. In terms of the basic constitution, the crime of maltreating family members has been analyzed in accordance with the theory of four elements for the constitution of a crime. The object of the crime of maltreating family members is the infringement of the personal and equal rights of family members. Some scholars hold that the one intended to be protected by the crime of maltreating family members is the democratic rights of citizens, which the writer can not agree. For the objective aspects of the crime of maltreating family members, by harmful behaviors it involves, it can be divided into the acts infringing the rights of life and health, the acts infringing the rights of liberty, the acts infringing the rights of reputation and the acts infringing the sexual rights of either spouse. The acts infringing the rights of life and health include beating, freezing, starving, damaging physical health, etc. The acts infringing the rights of liberty of one's family members include the acts of limiting personal freedom, the acts of forced excessive labor and the acts of spiritual coercion. However some of the acts should be excluded from the acts infringing the rights of liberty, i.e. the forced labor between family members but beyond family life and the forced drug feeding in order to harm one's rights of life and health. The acts of infringing dignities and rights of reputation of family members include insulting, abusing, etc. However, the writer holds that simple abusing should not be deemed as maltreating. The acts infringing the sexual rights of either spouse include multiple times of forced sexual acts and other sexual abuses. However, the occasionally occurred forced sexual acts committed by a husband against a wife should not be deemed as maltreating acts. Other factors concerning the objective aspects of the crime of maltreating family members can be viewed as the circumstances of such crime. The crime of maltreating family members is a circumstance based offense where the circumstances play an important role in convicting such crime. Flagrant circumstances are represented by long duration of time, many times, the damaging consequence caused by such crime, the brutality of the means of maltreating, the victims of such crime are minors, senior citizens, the disabled, pregnant women, breast feeding women, patients with serious illness, etc. Such a condition that requires many times of offense for the crime of maltreating family members to be established is referred to as gradual offense. The subjects of such crime are family members, whom the writer thinks shall include two meanings, one is relatives among them, the other is living together. The subjective aspect should be a direct and deliberate act. However, the motivations of such acts may be included into the scope of considerations for flagrant circumstances, which is that the actor has ever sought to cause the pain of the victims, either physical or spiritual. In terms of the aggravating constitution, there are two conditions, one is that such maltreating acts has been committed deliberately and lead to damaging consequence of having caused serious bodily injury or death of any victim, to which the actor maintains the negligent mindset. The second condition is that the victim can not bear the maltreating acts and chooses to self-harm or to committee suicide. The writer holds that the circumstances in which maltreating acts have caused the victim to self-harm or to committee suicide refer to that the maltreating acts of the actor have caused the victim to form the intention of doing so, then driven by a relatively free will, the victim chooses to do so, which results in serious bodily injury or death, but should not include the situations in which the victim chooses to do so due to depression or for other personal reasons, or the actor forces the victim to do so with the use of the means of maltreating.The third part is about the distinction between the crime of maltreating family members and any other acts or crime names. As for the distinction between the crime of maltreating family members and disciplining a child by his or her parents, we should focus on both the objective aspects and subjective motivations. First of all, regarding the objective aspects, as far as the harmful behaviors are concerned, the specific acts conducted by such disciplining acts are quite similar to the harmful behaviors of the crime of maltreating family members. From the extent of such acts, namely the circumstances, the two should be greatly differentiated from each other. In terms of the means of the acts, those disciplining acts can never reach an extent which is hardly acceptable. Secondly, it is about the subjective motivations. The two are all deliberate acts and with direct intention. Nevertheless, the maltreating acts and disciplining acts should be based on different motivations, wherein the maltreating acts should be based on a mindset that is seeking to cause the pain of the victims, either physical or spiritual, whereas the disciplining acts should be based on another mindset that is intended to educate those minors and to teach them toward goodness.The main difference between the crime of maltreating family members and the crime of maltreating persons under guardianship or caregivers lies in the subjects of the crimes. Different subjects of crimes has resulted in different objects being protected by the two crime names, more specifically, the rights of family members for the former, and the personal and equal rights of persons under guardianship or caregivers for the latter. In terms of the objective aspects, the two are all maltreating acts. Despite of this, the crime of maltreating persons under guardianship or caregivers can not involve any infringement upon the sexual rights of the victims. Once there is any such act, it should be prosecuted under rape or compulsory indecency. In addition, there also exists a situation where a unit crime is involved in the crime of maltreating persons under guardianship or caregivers, therefore large differences should be found between the maltreating acts that can be conducted by a unit subject and those maltreating acts described in the crime of maltreating family members. In terms of the subjective aspects, despite both are deliberately committed by natural persons, the intent of a unit crime involved the crime of maltreating persons under guardianship or caregivers need to be briefly analyzed. Moreover, differences can also be found between the punishing and prosecuting modes of the two.The crime of maltreating family members is most easily confused with crime of intentional injury in judicial practice, where the judicial officers seldom choose to apply the crime of maltreating family members but the crime of intentional injury in dealing an actual case involving the maltreating acts. First of all, the reason is that the crime of maltreating family members is a crime that should not be trialed without a complaint. Public prosecution procedures can be initiated to regulate such actors only by competent judicial organs. As far as evidences are concerned, it is more difficult to produce evidence for the crime of maltreating family members, and is also relatively unfamiliar to judicial officers. Conversely, the crime of intentional injury is a quite common crime. Also differences can be found between the constitutions of the two crimes, wherein the crime of maltreating family members belongs to “conduct crimes”, while the crime of intentional injury belongs the “result crimes”. The crime of maltreating family members has to be a repeated offense over a long period of time, whereas the crime of intentional injury doesn't have to be so. The actor of the crime of maltreating family members has to be one of the family members, whereas the crime of intentional injury doesn't have to be so. The criminal motivation of the crime of maltreating family members can be considered as a factor in determining whether the circumstances are flagrant, whereas in the crime of intentional injury, such factor has no impact on conviction. The overlapping relations between the two crimes, the combined punishment for the two offenses and the punishment as per the more severe offense are the conditions often neglected in judicial practice.The forth part is about the prosecution of the crime of maltreating family members. As stipulated in Amendment(IX) to the Criminal Law of the People's Republic of China, there are 3 prosecution modes for such crime, which are the private prosecution, private prosecution and then public prosecution and complete public prosecution. The crime of maltreating family members is a case that follows the principle of reported and prosecuted and is one kind of private prosecuted cases. The case can be public prosecuted in case the victim is incapable of reporting the case or unable to report under coercion and intimidation, or find any circumstance that allows the case to be public prosecuted during the private prosecution. It shall directly apply public prosecution in case the maltreating acts have caused serious bodily injury or death of any victim. Such prosecution modes for the crime of maltreating family members have both advantages and disadvantages. However, the writer holds that in protecting the principle of the victim's freedom in filing a lawsuit, the defendant and the victim involved in such crime should be allowed to achieve reconciliation by themselves, or the case may be prosecuted again as a private prosecuted case rather than being a public prosecuted case.