A Study On The Judicial Application Of The Crime Of Maltreatment Of Guardians And Carers

In recent years,there have been many reports about child abuse in preschool teachers,care workers and nannies,which have aroused widespread hot debate in the society,and also aroused intense discussion about adding child abuse crime,elder abuse crime and even expanding the main scope of abuse crime to cover a lot of abuse behaviors in the academic and public opinion circles.Before this crime was not included in the criminal law,the maltreatment behavior of the person or unit who has the obligation of guardianship and care can not be effectively regulated,which makes the relevant actors frequently violate the red line of the law but not get severe punishment.Therefore,the amendment(9)of criminal law includes the crime of maltreatment of guardians and carers into the criminal law,with the purpose of regulating this kind of behavior "wandering in the legal boundary".However,it has been five years since this crime was punished in 2015,but its application is not satisfactory.The provisions on subject,behavior and consequence of crime are too general,and the relevant judicial interpretation has not yet been followed up,so it is necessary to explore.The main body of crime of abuse of a person under guardianship or careis the person or unit who has the duty of guardianship or care.Guardianship belongs to the civil legal system,specifically,it should include legal guardianship,designated guardianship and entrusted guardianship.Nursing is different from guardianship,which is the behavior of protecting,caring and educating the caregiver.The legal nature,scope of application and protection of the two are different.In addition,the sources of their obligations are: the provisions of the law,the provisions of the contract and the requirements of their duties and business.In the crime of natural person,the following three cases should belong to the scope of the crime: abuse by non family members living together,abuse by teachers in primary schools and abuse by temporary caregivers.The objective aspect of this crime is "abuse".Maltreatment refers to the concealed physical or mental harm done by the perpetrator to the victim in the form of violence or non violence,with a bad situation.It has the characteristics of behavior concealment,means diversity and bad plot.At the same time,it is clear that pure mental abuse can not establish this crime,and sexual abuse can become the behavior of this crime;omission abuse is also one of the behavior of this crime.The conditions of conviction of this crime require "bad circumstances".The determination of bad circumstances should be combined with subjective abuse motivation and purpose,form of crime,social danger and objective criminal behavior,time and frequency of crime,and the serious consequences.This crime and maltreatment crime,the crime of intentional injury,the crime of insult sometimes produces the problem of concurring.This crime can't compete with the crime of abuse,the legal interests protected by the two crimes are not consistent with the subject of the act,and the perpetrator will not violate the two charges at the same time when he commits an abusive act;when he competes with the crime of intentional injury,he should be comprehensively identified in combination with the subjective motivation,criminal act and damage consequences of the perpetrator;when he competes with the crime of insult,he should be convicted and punished in this crime.