Rational Consideration On Prosecution Institution Of The Abuse Crime

According to criminal law of China,crimes of insulting,crimes of defamation,crimes of interfere freedom of marriage with violence,crimes of abuse and crimes of embezzlement shall be handled only upon complaint.The scholars generally refer to such crimes as crimes of private prosecution.Crime of private prosecution in China is rarely and single-typed,but plenty in the civil law system.It is not difficult to understand why the mainstream academic has advocated expanding the scope of our country' s prosecution.Perhaps it is reasonable and necessary to expand the scope of crimes of private prosecution in China.However,this does not mean that China' s five crimes of private prosecution should always implement the institution of prosecution at accuse,and in fact,it is necessary to review the institution carefully.The judicial practice of prosecution institution of the abuse crimes is not successful.The reasons for this judicial status are many,but first we must review the institution itself.The prosecution institution was deeply influenced by the ancient legal traditions of China.The prosecution institution was inherited from ancient legislation.In addition,the austerity of criminal law,the special interests and special emotions of victims,characteristic of acquaintance Society and National policy is also factors in consideration of the institution.However,the ancient legal tradition also has its drawbacks.With the changes of the times and changes in social concepts,it is necessary to question and reflect on the prosecution institution of the abuse crimes.The author considers four aspects:First,it is difficult to realize the purpose of respecting the wishes of the victims;second,it deviates from the beneficial experience of foreign legislation;and third,the crime of abuse is not to belong to crimes among relatives who should implement prosecution institution;at last,it is difficult to effectively link with the Anti-Domestic Violence Law of China.Comprehensively weighing the pros and cons,the author concludes by introducing the view that“public power involvement in domestic violence cases is justified ",and that prosecution institution of the abuse crimes does not seem to be a better choice.After reviewing and returning to the dilemma of judicial practice,three sets of schemes were designed based on its possible legislative choices.Plan A,change the abuse crimes to non-private prosecution crimes with corresponding judicial improvement;Plan B,still private prosecution crimes but the public prosecution procedure with corresponding judicial improvement;Plan C,in compliance with the current laws,the judiciary actively intervenes in the abuse crimes as the role of the facilitator,to realize the seamless convergence of public right and private right is the most realistic way to solve the problem.Among all the three plans,Plan A is the first choice,Plan B is the second and Plan C is the last.