| In view of the guardian’s negligence or improper performance of the guardian’s responsibility,which results in the guardian suffering from serious personal damage,disordered life,anomie behavior and even criminal behavior,the guardian will face the problem of responsibility investigation.The legal theory and judicial practice of our country have a clear understanding of the nature of responsibility,the principle of punishment,the principle of punishment,the principle of punishment,the principle of punishment,and the principle of punishment The research on substantive issues such as sanctions is still in its infancy and exploration stage,and the opinions are quite different.The focus of the dispute mainly lies in the nature of the guardian’s responsibility for serious guardianship dereliction of duty,the necessity of bringing serious guardianship dereliction of duty into criminal law,and the feasibility of putting serious guardianship dereliction of duty into criminal law.With these questions,on the basis of fully learning and referring to the relevant theories or practical experience at home and abroad,this paper discusses the constitution of the crime of serious dereliction of duty in guardianshipFirst of all,it is an overview of serious dereliction of duty.First of all,it clarifies the concept of serious guardianship dereliction of duty.Because,in our country’s legal system,there is no unified definition of serious guardianship dereliction of duty.The premise of legal regulation of an act is a clear concept;Secondly,through the analysis of the types of serious guardianship dereliction of duty,we can distinguish the general guardianship dereliction of duty from the serious guardianship dereliction of duty.To set conditions for serious dereliction of duty in guardianship to be punished,so as to fully embody the principle of "suiting crime to punishment";Thirdly,through the comparison of legal obligation and moral obligation of guardianship responsibility,and the analysis of guardianship content and the causes of dereliction of duty,the legal basis of serious guardianship dereliction of duty is further consolidated.Secondly,it is necessary for serious dereliction of duty in guardianship to be punished.According to the theory of criminal law,if an act needs to be included in the regulation scope of criminal law,it should start from three aspects: the social harmfulness of the act,the punishable nature of the act and the shortcomings of the existing legal regulation measures.This paper mainly uses the combination of theory and Practice(case)in the process of practical discussion.The key points should be highlighted,the organization should be clear,and the theoretical foundation should be solid and sufficient.Thirdly,it is the feasibility of serious dereliction of duty in guardianship.For the feasibility of serious dereliction of duty into the criminal guardianship,the article will make a comparative analysis from positive and negative aspects.On the one hand,it is necessary to clarify the favorable conditions for serious guardianship dereliction of duty to be punished,such as the theoretical and practical basis;On the other hand,we should be fully aware of the legislative resistance of serious guardianship dereliction of duty,including legislative and judicial costs.Once the law can not be widely accepted by law enforcement,or the cost is too high,it is difficult to be effectively implemented,and it will lose the original intention of legislation and the vitality of the law itself.Finally,it is the system conception of serious guardianship dereliction of duty in the future.In our country,the research on severe guardianship dereliction of duty into punishment is still in the exploratory stage,and there is no consistent legislative proposal.This is not difficult to understand,because in other countries or regions that have completed the criminal legislation of guardianship dereliction of duty,there are also huge differences in their legislative options.Germany and Japan are representative.For example,there is a special crime of dereliction of duty in custody in German criminal code.In contrast,Japan adopts the decentralized legislation mode,that is,the specific situation of serious guardianship dereliction of duty is decentralized to other existing charges.Both of them provide legislative reference for the regulation of serious guardianship dereliction of duty in China.On this basis,according to the theory of four elements of the constitution of crime in China,this paper expounds the constitution of the crime of dereliction of duty in guardianship.At the same time,it also carries out the judicial determination of the specific problems of serious dereliction of duty in guardianship.From the nature of behavior,it realizes the universal recognition of distinguishing crime from non crime,and creates conditions for the specific application of law in judicial trial activities. |
