Study On The Judicial Determination Of The Crime Of Maltreatment

The recent cases of abusing children at the red,yellow and blue kindergarten and child abuse by the stepmother have again exposed the abuse crimes to the public,causing the society to pay close attention to the abusive cases,the voice that safeguards the legitimate rights and interests of family member and ensures minor healthy growth also increases accordingly.The Criminal Law of The People’s Republic of China clearly stipulates the content of the crime of maltreatment,and also increases the crackdown on maltreatment.However,judicial staff still face some difficult problems on the determination of the crime of maltreatment in judicial practice,for example,how to evaluate the maltreatment of the actor and how to define the subject of the crime of maltreatment.It is gratifying to note that the 16 th session of the 12 th Standing Committee of the National People’s Congress voted to adopt the ninth amendment of the Criminal Law on August 29,2015.It further supplemented the relevant content of the crime of maltreatment,strengthened the regulation of the maltreatment behavior,and also provided new ideas for the better handling of abusive cases.From the perspective of three typical abusive cases of " Mr.Han,Mr.Zhang and Mr.Ou Yang",the identification of the torturing behavior of the actor in the case,the definition of "family members" living together,and the conviction of the actor in the judgment were sorted out,analyzed and concluded.This paper is mainly divided into three parts,as follows:Firstly,a brief introduction is made to the basic cases of the three typical abusive cases " Mr.Han,Mr.Zhang and Mr.Ou Yang ".On the basis of the judicial determination of the crime of maltreatment,the criminal facts in the case and the judicial departments’ identification of the case facts are analyzed.And summarizing the main dispute focus in the case,such as the people’s court for the accused Mr.Han,Mr.Zhang and Mr.Ou Yang and so on "abusive behavior" is accurate.Secondly,legal analysis is made on the main controversial issues in the three typical cases of maltreatment.First of all,in this case,the people’s court determines whether the "abusive behavior" carried out by the actor is accurate,and what criteria should be used to determine whether the "abusive behavior" in the sense of criminal law is reasonable in judging whether the ordinary behavior of discipline for the actor belongs to "abusive behavior" in the sense of criminal law;Secondly,whether the court’s determination of the subject qualification of the criminal is accurate,whether it can expand the interpretation of "family members" living together,and further analyze the relationship between family members and the person who has the responsibility of guardianship and care;Thirdly,whether it is correct for the people’s court to define the seemingly abusive behavior of the perpetrator as intentional injury in the judgment;Finally,the analysis of crime and abuse and the relationship between the limits of intentional injury,the perpetrator under the condition of family members,beating abuse crime and intentional injury on the objective aspect performance is very similar,so how to distinguish between crime and abuse the limits of intentional injury,how to judge the actor’s subjective intent,is a deliberate abuse or intentionally hurt.Thirdly,the author analyzes the different problems of the perpetrators’ convictions in the three typical cases of maltreatment.The three abuse cases selected in this paper are all considered by the people’s court from the objective expression of the actor’s subjective intention.First of all,the identification of the people’s court about the "abuse behavior" of the defendants " Mr.Han,Mr.Zhang and Mr.Ou Yang " and others is not accurate enough in this case,which needs further discussion.In terms of the identification of abuse,the "abuse" behavior in the case should be considered as a whole and analyzed in combination with its characteristics of persistence,malignancy and diversity;Secondly,in addition to the dispute between the court of first instance and the court of second instance in Zhang’s torture case,the court’s determination of the subject qualification of the actor is accurate in other cases.And we can’t arbitrarily expand the interpretation of "family members" living together;Finally,the distinction between the crime of maltreatment and the crime of intentional injury should be made from the constitutive elements of the two crimes.Among them,the most obvious distinction is that the two crimes have different subjects.The crime of abuse requires the subject to be a "family member" living together,while the crime of intentional injury does not have such restrictions.Through the analysis of the above three cases of abuse,the corresponding research conclusions and enlightenment are proposed,and some opinions are put forward on the establishment of the identification standard of abuse behavior and how to deal with the difficulties in the judicial determination of the crime of maltreatment.