Study On The Judicial Recognition Of Child Abduction And Trafficking Crimes Of The "Selling Of Biological Children" Type

The crime of child abduction and trafficking,which dwarfs human beings into commodities for sale,is a serious violation of the non-tradeability of persons.After a long period of punishment and crackdown in China,ordinary child abduction and trafficking crime cases have been effectively curbed,but the phenomenon of selling biological children is becoming more and more prominent and has become the main form of child abduction and trafficking crime in China.However,due to unclear legal provisions and the irregular application of relevant policy guidance documents,there are currently difficulties in the regulation of the sale of biological children in China,and the problem of different sentences and uneven sentences in judicial trials is more prominent,which poses a challenge to the maintenance of judicial credibility and legal dignity in China.In this paper,we explore the legal interests of child abduction and trafficking,analyse the factors that determine the subjective elements of the crime of child abduction,and argue for the reasonableness of classifying the act of selling one’s own children as a crime of child abduction and trafficking.In the light of this study,it is found that,although we expect the existing criminal law framework to provide reasonable punishment for the crime of child abduction and trafficking of "selling one’s own children" as far as possible,the existing crime of child abduction and trafficking has some shortcomings in preventing this type of crime due to the special nature of the act of selling one’s own children,and therefore,some adjustments to the starting point or sentence range are needed.Some adjustments should be made,and preventive measures beyond penalties should also be improved in order to effectively curb the occurrence of the act of selling one’s own children.This article is divided into five parts,structured as follows.The introductory section,which focuses on the background of the topic chosen for this paper,the literature review and the significance of the research and the innovation of this paper.The first chapter examines the current state of regulation of the sale of biological children and its causes.Through an empirical study of 120 judgments on the sale of biological children in the past five years,it is concluded that there are three major problems in the regulation of the sale of biological children in China,namely inconsistent characterisation,confusion in the standard of subjective elements and imbalance in crime and punishment.The second chapter examines the protection of legal interests in the crime of child abduction and trafficking.Although there are no uniform standards and main streams of opinion on the protection of legal interests in the crime of child abduction and trafficking,the international development of criminal law and the internationalization of the crime of child abduction and trafficking have led to the development of a new approach.However,under the new situation of the international development of criminal law and the international community’s call for the protection of children’s human rights,a new legal interest in the crime of child abduction is constructed based on the composite legal interest of "the right to choose one’s own fate based on the non-tradeability of the person",which is of great practical significance in today’s Chinese society where cases of selling one’s own children are frequent.Chapter 3 examines the determination of the subjective elements of the crime of child abduction and trafficking in the form of "selling one’s own child"."In judicial practice,the determination of the "purpose of the sale" should follow an objective to subjective approach,from whether the perpetrator actively solicited money,whether the sale was premeditated,and the amount of money received.The four elements are whether the perpetrator actively solicited the money,whether the sale was premeditated,the use of the money received and whether the perpetrator cared about the environment in which the child was sent for adoption.This chapter also combines chapters 2 and 3 to reiterate the validity of the crime of child abduction and trafficking in relation to the sale of a biological child.Chapter 4 focuses on the punishment and prevention of child abduction and trafficking in the form of "selling one’s own children".It is proposed that a distinction should be made in terms of sentencing between "selling one’s own children" and ordinary child abduction and trafficking offences,and that lighter penalties should be applied.As the existing crime of child abduction and trafficking has some shortcomings in preventing this type of crime,there is a need to make some adjustments to the starting point or the sentence range.It is also necessary to propose preventive measures in addition to penalties,with a view to effectively curbing the occurrence of the sale of biological children.