Research On Judicial Determination And Penalty Application Of The Behavior Of Selling One’s Own Children

The crime of abducting and trafficking women and children is a crime that many countries focus on,because the modern civilization of rule of law can not tolerate the behavior of commercializing and materializing people.In the judicial practice,one kind of special behavior attracts people’s attention,that is,the behavior of selling one’s own children.Through sorting out and analyzing the valid judgment documents of selling one’s own children,it is found that there are different treatment results in judicial application.Some believe that the act constitutes the crime of trafficking in women and children,some think that constitutes the crime of abandonment.The main reason is that the special act of selling one’s own children is not regulated and evaluated clearly in the criminal law of our country.Furthermore,in recent years,the judicial guidance documents issued one after another,the summary of the National Symposium on the Criminal Trial Work of the courts in maintaining rural stability,the circular on issues related to combating crimes of trafficking in women and children,and the opinions on punishing crimes of trafficking in women and children in accordance with the law,do not agree on additional provisions regarding the characterization of the act of selling one’s own children,whether the selling of one’s own children can constitute the subjective purpose of the crime of trafficking in women and children is in conflict with the "selling purpose" in the criminal law.The conflict between the provisions of the judicial guidance documents and the legislative provisions,together with the frequent changes of the provisions of the judicial guidance documents,leads to a great confusion in the judicial application of the act,and the cases of different judgments of the same case occur from time to time.This article just studies the Judicial Cognizance and penalty application of selling one’s own children,in order to put forward the perfect proposal of judicial cognizance and penalty application of this behavior,so as to better prevent and punish this kind of crime.Specifically,this paper first of all,the sale of natural children related to the concept of the behavior,analysis of the characteristics and causes of the behavior,the behavior of the legal norms.Applying the method of case study,this paper analyzes the current situation of judicial cognizance and penalty application of the act of selling one’s own children,and sums up the characteristics of judicial cognizance and penalty application of this act,then,there are some problems in the judicial application,such as the disunity of the nature of the act,the confusion of the subjective elements,the great difference of the judgment result,and the overall punishment is too light and the punishment is abused.These problems reflect the ambiguity of our country’s legal provisions,the irreconcilable contradiction between the provisions of judicial guidance documents and the content of criminal legislation,and the predicament of the lack of protection of human dignity in the Criminal Law.This is also a reflection of the lack of restriction on the right of action of the judge’s discretion and the fetter of the traditional family ethics to the national ideology.Therefore,in order to accurately determine the act of selling one’s own children in judicial practice,and in order to achieve a better balance between crime and punishment,this paper suggests that this act,no matter how much property is obtained,should be convicted and punished according to the crime of trafficking in women and children,however,it can be combined with the system of special mitigation of punishment,appropriate leniency and mitigation of punishment.At the same time,attention should be paid to distinguish the act of selling one’s own children from the act of civil adoption.