Judicial Application Of The Offence Of Ill-treatment Of A Guardian Or Caregiver

In 2015,China’s Criminal Law Amendment(Ⅸ)added the crime of abusing guardians and caregivers,providing a criminal basis for the increasingly frequent incidents of child abuse by kindergarten teachers and abuse of the elderly by nursing workers.At present,the crime of ill-treatment of the guardian and caretaker has been sentenced to seven years,but the judicial application rate is not high.Due to the lack of clarity in the provisions on the elements of abusive acts and criminal subjects,and the lack of corresponding judicial interpretations to supplement and improve them,many problems have arisen in the judicial application of this crime,including:the determination of criminal subjects is inconsistent,the determination of abusive acts is not clear,the criteria for judging "serious circumstances" are relatively vague,and the application to similar crimes is confused.The main body of the crime of abusing the guardian or caretaker includes natural persons and units,and the guardianship duties of the perpetrators mainly come from the provisions of the law and legal acts,and the nursing duties mostly come from the contract and the requirements of the profession.Guardianship and care obligations derive from legal provisions,legal acts,professional requirements,factual acts,and prior acts.The entity entity does not need to have formal qualifications to establish this crime,nor does it need to have a profit purpose.The harmful acts of the crime of ill-treatment of the guardian or caregiver are different from ordinary disciplinary acts in terms of means of conduct and subjective purposes,and show characteristics such as heinous nature,variety of means,and serious consequences.Using the mode of conduct as the basis for division,the harmful acts of abusing the guardian and the crime of caregivers can be divided into different types such as physical abuse,emotional abuse,and sexual abuse.Simple mental abuse and neglect abuse are difficult issues in the determination of harmful acts of this crime,and in this regard,the punishability of simple acts of mental abuse should be affirmed,and ignoring abuse may also constitute this crime under certain conditions.The crime of ill-treatment of a person under guardianship or caretaker is a factor in the amount of guilt of the crime,and only when the degree of "serious circumstances" is reached can the crime be established,and the specific judgment standard shall be lower than the crime of ill-treatment.It is necessary to comprehensively consider the means of the abusive act,the duration of the abuse,the frequency of the commission,the object of the crime,the consequences caused,the perpetrator’s criminal motive,personal danger,and so on.There is some overlap between the crime of ill-treatment of the guardian or caregiver and the crime of ill-treatment in terms of the subject of the crime,but the imaginary competition between the two crimes should be denied,and this crime does not include abuse between family members.When the abuse causes serious injuries,a specific analysis of the pattern of the number of crimes should be carried out.When an act of ill-treatment causes serious injury or death,the crime may be established in conjunction with other crimes,and may also be punished for several other crimes.