Research On The Difficult Problems Of The Crime Of Mistreatment Under Guardianship And Caregiving

In response to public opinion and the demands of social development,the Criminal Law Amendment Nine of our country has added the crime of mistreatment under guardianship and caregiving,which breaks through the maltreatment within the scope of family relations,bringing children,the elderly,the disabled,Sick people and even other vulnerable groups are included in the scope of their protection.However,due to the lack of in-depth research on this crime,there are a series of difficult problems in the judicial practice of the crime of mistreatment under guardianship and caregiving.This paper introduces the difficult problems existing in the judicial practice of the crime of mistreatment under guardianship and caregiving by means of typical cases,on this basis,it analyzes the problems,and finally puts forward the corresponding solutions to the difficult problems.The paper is divided into three chapters.The first chapter is a brief analysis of the typical cases of the crime of mistreatment under guardianship and caregiving and put forward some difficult problems.Starting with three typical cases of the crime of mistreatment under guardianship and caregiving,combined with the induction of 22 adjudicative documents,the author analyzes the reasons for criminalization of the subject in the case,and puts forward the difficult problems existing in judicial practice: the problems of the definition of the related concepts in the crime of mistreatment under guardianship and caregiving,the problems of the identification of the criminal form and the problems of distinguishing of crime concurrence.The second chapter is the analysis of the difficult problems of the constituent elements of the crime of mistreatment under guardianship and caregiving.This part analyzes and discusses the controversial issues in the crime of mistreatment under guardianship and caregiving,mainly defining the subject of crime,the “maltreatment” and the "abominable circumstances".Firstly,the related concepts of "abuse" and "nursing" in the subject of crime are analyzed,and the identity of natural person and unit subject is determined based on this.Secondly,the concrete connotation of "mistreatment" is analyzed,and the specific scope of “mistreatment” in the crime of mistreatment under guardianship and caregiving is clearly defined,as well as the criterion of “mistreatment”.Finally,the analysis of " abominable circumstances" carried out,it affects the establishment of crime of mistreatment under guardianship and caregiving.The meaning of "aggravated circumstances" in this crime and the specific criteria for its determination are clearly defined.The third chapter is the identification of the special criminal form and the distinction of the concurrence of the crime of mistreatment under guardianship and caregiving.The form of crime discusses two problems: the form of incomplete crime and the form of accomplice.In the aspect of incomplete form,discontinued criminal of the crime of mistreatment under guardianship and caregiving refers to the end-of-life suspension,and there is no attempt to commit the crime of mistreatment under guardianship and caregiving.In the form of accomplice,whether the subject of the crime of mistreatment under guardianship and caregiving has the status of guardianship and the caregiving duty affects the establishment of the principal offender and the establishment of the accomplice.In the area of criminal concurrence,the key to solving the concurrence with the crime of abuse is to confirm the identity of the subject of the act and whether the object of the act belongs to the family member,the key to competing with the crime of intentional injury is to confirm that long-term abuse constitutes a crime or a number of crimes,the key to competing with the crime of insulting is to clarify whether the insulting act is "blatantly" known in "mistreatment" and whether the object of the act is specific,the key to solve the problem is to make clear whether the subject has caused the violation of the legal interests of the crime of provoking and causing trouble.