A Study On The Crime Of Abandonment During The Period Of Nanjing National Government

The crime of abandonment in modern China refers to the crime that the perpetrator makes the person who has no self-help ability and needs protection unable to obtain protection,including ordinary abandonment crime and special abandonment crime.Among them,the ordinary abandonment crime refers to the crime that the perpetrator abandons the person without self-help in a positive way,while the special abandonment crime is the crime that the subject with specific obligations abandons the person without self-help,including the abandonment of positive actions and the abandonment of negative disregard.The norms of punishing abandonment in the legal sense have existed since ancient times.In ancient society,the idea of legislation of the crime of abandonment originated from the concept of loyalty and filial piety in the society of "family and country".Under the influence of the thought of loyalty and filial piety,the occurrence of abandonment was strictly prohibited in all dynasties,and the abandonment was severely punished by laws and regulations,which was mainly reflected in the chapters of "family marriage" and "litigation",such as "the crime of unfilial piety","the lack of children’s violation of religious orders and support","different origin and different wealth" and other related charges.In the process of modern reform,the crime of abandonment was officially put forward through the reform and amendment of the law in the late Qing Dynasty.After the criminal law of the Qing Dynasty in 1911 and the provisional new criminal law and relevant amendments in 1912 in the early Republic of China,the legislative content of the crime of abandonment based on the framework of ordinary abandonment crime and special abandonment crime was basically established,and the upgrading of the legislative provisions of the crime of abandonment from tradition to modern times was initially realized.During the period of Nanjing National Government,two criminal laws were promulgated successively,namely,the criminal law of the Republic of China in 1928 and the criminal law of the Republic of China in 1935.These legislation enriched the connotation and extension of the norms of the crime of abandonment.From the late Qing Dynasty to the early Republic of China to the Nanjing National Government,the changes of the normative content of the legislation of the crime of abandonment are mainly reflected in the expansion of the protection object and scope of the crime of abandonment,the objective changes of the constituent elements,the reduction of the range of sentencing and so on.At this time,after many legislative amendments and adjustments,the normative framework was formally established and gradually improved,realizing the modernization transformation of the legislation of the crime of abandonment.The judicial situation of the crime of abandonment during the period of Nanjing national government is mainly as follows: the number of cases of the crime of abandonment fluctuates greatly,the cases are mostly closed in the form of non prosecution,the criminal subject is mostly at the bottom of the society,and the penalty of fixed-term imprisonment for the crime of abandonment is relatively light.The judicial practice of common abandonment crime is characterized by the diversity of telling or reporting subjects of litigation;The identification standard of abandonment is strict;There is inequality between the result of crime and the verdict of crime and punishment.The characteristics of judicial practice of the crime of special abandonment are that the subject of litigation is mainly the abandoned;The criteria for determining whether the abandoned object has self rescue ability are complex;Whether the act of abandonment is special;Sentencing decisions are subject to subjective influence.The positive effects of the legislative construction and judicial practice of the crime of abandonment during the period of Nanjing National Government are mainly reflected in:first,it demonstratively promoted the modernization of China’s legal system with advanced legislative norms and ideas;Second,it has effectively cracked down on the crime of abandonment,avoided the spread of abandonment in society,and effectively guaranteed the life,health and legal interests of the public;Third,it inherits the moral concept of helping others in the traditional society and the fine morality in the family order,guides the good social atmosphere and carries forward social justice.There are also some problems in the legislation and judicature of the crime of abandonment during the period of Nanjing National Government.For example,due to the neglect of the social reality foundation and the failure to properly deal with the relationship between legislation and the times and environment,the content of legal norms is too advanced,the setting of some normative contents is chaotic,and the requirements are complex and disorderly,resulting in the dilemma of the application of law in judicial practice;Due to the unclear and careless legislative setting,the specific operation of the judicial process is sometimes not smooth;Due to the lack of a complete judicial supporting system,weak allocation of judicial infrastructure and insufficient staffing,the connection between legislative norms and judicial system is not close enough,which affects the effective interaction between legislation and justice and increases the gap in the process of judicial connection.The comprehensive effect of the above problems has seriously affected the efficiency of the state in punishing the crime of abandonment.