Research On The Determination Of The Crime Of Abusing Guardians And Caregivers

After the 2015 Ninth Amendment to the Criminal Law stipulated the crime of abusing guardians or caregivers,there is already a law to punish related crimes,but the determination of this crime is still controversial in judicial practice.Based on the theoretical research on the crime of abusing guardians or caregivers,this paper further discusses the determination of this crime,clarifies the relevant conviction standards,and resolves the focus of controversy over this crime.Therefore,this paper discusses the criminal composition of this crime through literature research and empirical research,deeply analyzes the identification standards of this crime in judicial practice,makes detailed arguments from the aspects of the subject,objective behavior,and unfinished form of the crime,compares this crime with other crimes from the perspective of this crime and other crimes,and combines relevant criminal law theories to study and solve the problems arising in the judicial application of this crime.The first part examines the current application of the law.Through the collection of a large number of cases,the main points of controversy that have emerged in judicial practice in recent years are summarized,namely,the identification of natural persons and entities subject of the crime of ill-treatment of guardianship and caretakers,the specific manifestations of abuse,the determination of aggravating circumstances,the identification of suspended offenders and attempted offenders,and the competition between the crime and other crimes,such as the handling of the crime of abuse and intentional injury,summarize the problems in practice,and improve the practicality and feasibility of the article.The second part elaborates on the determination of subjective and objective elements separately.The source of the subject’s guardianship and nursing duties,the identification of natural persons and unit entities,the meaning and classification of the crime of ill-treatment,the connotation of "aggravating circumstances" and the specific identification standards in the crime are clarified.The issue of the attribution of unlawful PUA abuse is introduced,and the judgment of new types of abuse such as mental abuse and drug abuse,as well as the determination of "indecent behavior" in this crime.The third part deals with the unfinished forms of the crime of abusing guardianship and caretakers.The paper discusses this crime preparatory offenders,attempted offenders and suspended offenders.In the case of preparatory offenders,it defines whether the crime constitutes a preparatory offence if the offence is only a mean and no action is committed;For the suspension of the crime,the final suspension and the non-implementation of the suspension of the crime are discussed separately,and the automatism of the "automatic" suspension of the crime is discussed in the theoretical and practical circles.For the attempted offender,the two constituent elements of the crime have been initiated and the failure of the criminal act are analyzed,and whether the crime can be punished as an attempt is discussed.The fourth part focuses on solving the problem of confusion between this crime and other crimes in judicial practice.The paper distinguishes from different angles,clarifying the differences between the crime of abusing guardians and caregivers and the crime of maltreatment,the crime of intentional injury and the crime of insult,discussing the competing relationship between the two crimes and the principle of punishment,further studying the competing and imaginary competition between this crime and other crimes,and putting forward the problem solving ideas when dealing with relevant complex situations in practice.