A Study On The Crime Of Abusing Of The Guardians And Caregivers

Torture is defined crime in criminal law,the subject is limited to family members living together.Along with in recent years,however,for the family members of guardianship,caregivers abuse exposure,abuse is also reflected the deficiency of the legislation.As one nanny employer abuse case occurred in Beijing,as well as a hospital nurse case of elder abuse.These events violated the custody,care for people's health rights,but also to the spirit of the victim left an indelible wounds.And before November 2015,due to the lack of legislation or because of the regulation is not enough,lead to custody,care,people can't effective rights after abuse.In order to effectively protect the legitimate rights and interests of custody,care,the amendment of the criminal law of the People's Republic of China(9)established the abuse of custody,caregivers,to the disadvantaged custody,care people set up a powerful protection barrier.Based on the connotation of the guardianship,caregivers cruelty as a starting point,based on the existing legislation and academic research,draw lessons from domestic and foreign legislative experience,think deeply about related questions of this crime,focus on the abuse of criminal offense of guardianship,caregivers constitute and recognized is studied;In combination with China's national conditions and social status quo,in view of the practical problems encountered in the judicial,in legislative layer,put forward some feasible suggestion in order to further promote the perfection of related crime to contribute.Specifically this paper is divided into the following several parts:The introduction part first elaborated the research background,namely the abuse of custody,caregivers happened frequently,bring serious social problems,suggests that this paper has theoretical value and practical guiding significance.Then,on the basis of reference to absorb domestic and foreign scholars research achievements,using literature analysis,interdisciplinary analysis and comparative analysis to abuse by monitoring,the connotation of the crime of caregivers,constitutive requirements and legislation problems is analyzed,and for some of the problems existing in the current legislation must be original.The first part of the basic meaning of guardianship,caregivers cruelty and their characteristics were summarized.Throughout the current criminal legislation and the related theory,custody,caregivers cruelty refers to minors,the elderly,sick,disabled,etc.The person responsible for the custody,care,abuse custody,care,if the circumstances are flagrant behavior;This crime has the specificity of the subject,object particularity,the basic characteristics such as behavior concealment.Look from the history,before the founding of the people in our country,the criminal punishment abuse custody,caregivers behavior has great lack and defects on legislation;After the founding of new China,and gradually realized from scratch,from there to process,two of the biggest is China's \"criminal law\" in 1979 established the abuses,\"criminal law amendment(9)in 2015 established the abuse of custody,caregivers.And the major developed capitalist countries and regions outside of the relevant legislative experience is worthy of reference for our country,such as through perfecting mainland legal system country criminal law legislation or established ZhuanMenFa way to protection of custody,care people,while the common law countries rely more on judicial precedent,for related search direction on the solution of the problem.The second part mainly studied the components of this crime.The criminal object of this crime is the custody and care of personal rights,criminal objective elements for the custody,care people against their duties imposed abuse,crime subject is a member of the family relationship of guardians and caregivers,this crime crime subjective important document for deliberately.The third part to solve the issues of the cognizance of this crime.The cognizance of this crime and the crime is mainly to the custody,care of whether the abuse behavior constitutes the plot.This crime and the crime of abuse difference mainly lies in the fact that this crime crime object only for the personal rights and interests of the victim,the criminal subject requirements with the victim does not belong to the family relationship,and relationship of guardianship,nurse;Imagine concurrence,crime and abuse has aggravated the plot,this crime cases of public prosecution.The difference between with crime of intentional injury,this crime subject of crime requires relationship with the victim custody,care.The difference between this crime with insult sin,is the victim of the crime of insulting the reputation,and this crimemain violated the victim's life and health,from crime,insult sin is required to be disclosed,and this crime crime tend to be hidden.Implementing this crime behavior,belongs to the crime accomplishment,during the preparation phase because of the offender will suspend belongs to the preparation of this crime carrying out behavior has not yet succeeded,because of the reason to suspend the will of the person belongs to the attempted crime,this crime behavior person take the initiative to stop and give up in the process of committing a crime behavior abuse,and actively prevent the harm result,discontinuation of a crime belongs to.This crime in the crime number identified on a continuous,continue to make and is regarded as a crime,this crime imagined concurrence,implement for of minor crime attached to serious punishment.This crime exists an accomplice form,along with the implementation of abuse custody,care for people for a common crime,use the other maltreatment be care,care for people to belong to indirect crime,this crime was the instigator and help.The body of the general status also can become the accomplice of this crime.The fourth part analyzes the abuse of custody,care the legislative status quo of sin.Such as inadequate expression of science,the criminal law provisions inclusive too uncoordinated,legislative system,etc.,and puts forward the corresponding improved measures,mainly including perfecting legislation,coordinate the relationship between the relevant provisions of criminal law and other department,coordinating the relationship between this crime and other crimes,to coordinate the relationship between the other related crimes,and added to the existing provisions.Through the theoretical research and legislative,judicial reality,make the study has practical support,and to benefit the legislation and judicial practice.