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關於虐待犯罪的理論分析及對中國虐待罪的立法完善意見 = Theoretical analyses on mistreatment criminal act and suggestions on improvement of China's legislation of the crime of abuse

English Abstract

With the development of world economy and society and the movement of human rights, the promulgating of the Amendment to the Criminal Law of the People’s Republic of China (VIII) reflects that our nation’s criminal law is adapting to the growing trend of “human-oriented” humanization order with the aim of implementing the notion of “tempering justice with mercy” in criminal policy. Since the enhancing of legal awareness of self-protection, the consciousness of anti-violence, anti-personal and anti-property torts is becoming stronger and stronger. Nevertheless, cases of violence and abuse are reported frequently by the media in reality, and the limitation and the lag of laws and regulations cannot adjust the complicated social relationship effectively in time. Therefore, amounts of legal scholars draw their attention on how to perfect the legal provisions of general illegal act and criminal behavior of abuse. The article attempts to investigate the demarcation of criminal and non-criminal abuse behavior in the research of the mistreatment, like how to distinguish different circumstances of the crime, how to define the constitutive elements of the crime of abuse correctly, how to apply to law and regulations in different levels and how to insist on the modesty principle of criminal law and maintain the criminal deterrence and prevention at the same time. In addition, it also explored the relationship between mistreatment behavior and the crime of abuse, focusing on whether there are laws to abide by. If the answer is positive, enforcement with the principle of suiting penalty to crime and criminal responsibility will be considered. Furthermore, how criminal law of foreign countries deal with this issue and find out the legal differences from foreign criminal laws to China’s domestic criminal law, and how to improve criminal legislation of the crime of abuse to become more scientific and rational will be 6 explored as well. This article mainly focuses on researching the criminal legislation of the crime of abuse, starting from the criminal behavior, modes of reflection, and reasons of conducting a crime to expose current serious situation of violent circumstance of criminal at home and abroad. Moreover, it tends to find out the diversity of constitutions of a crime between China and other countries through comparing China’s provisions of the crime of abuse to those in other continental legal system or in other areas. Meanwhile, it also compares the gradation of penalties and their content of different countries and explores the reasons for different legislative styles of abuse crime. Afterwards, it investigates the paradox of the emergence of new problems in current criminal behavior of abuse in the aspects of the object, the subject and patterns of criminal quality, and issues of judicial practice, regarding to the research of constitutions of abuse crime as the key issue. Last but not the least, it proposed reforms on the China’s legal system of the crime of abuse in various aspects from a comparative perspective, including constitution of a crime, legislation of penalty and related criminal rules and regulations. And non-criminal approach will be clarified as well. The outline of this research is shown as follows: 1. This article compares the legislative stipulations of China to those in other continental legal system or in other areas. Different countries have different connotation and denotation to define the crime of abuse. This thesis inspects the similarities and differences of the constitutions of a crime between China and other countries by listing the legislative stipulations of France, Germany, Italy, Portugal, Brazil, Poland, Macau, Taiwan and other places from the perspectives of the object, the subject and legislative regulations, aiming to find out the main features of the constitutions of abuse crime, penalty regulations and legislation system. 2. It investigates the basic constitution theory of the crime of abuse. The concepts of abuse crime are diverse from different areas in different centuries. There are differences between the standards to decide an act is crime or not. 7 Therefore, definition for abuse act, violent behavior and illegal act shall be clarified separately. The rights and interests offended by abuse are new problem shall be explored while study of the objectives of the crime of abuse, such as sexual, mental, joint property, etc. More importantly, specific relation in a rebuild family and other relationship without kinship, such as education, labor, and authorized guardianship will be discussed in the light of theory of finding offender and the theory of forming criminal patterns which were argued by a lot of scholars. 3. It discusses about problems of the penalty of the crime of abuse. Based on basic theories of penalty, like the principle of suiting penalty to crime and criminal responsibility, this article explored how to design legal penalty for different criminal behavior of abuse. In comparison with current regulations of China’s non-criminal punishment, such as the Tort Law of PRC and the Public security Administration Punishments of PRC, insufficiency and simplex of current legal criminal penalty impede the application of non-criminal supplemental rules. 4. It provides some suggestions to improve the legislation of the crime of abuse. More specifically, it proposes a tentative idea of reforming the crime of abuse from the community correction, fine punishment, qualification punishment, probation, recidivist and other way of penalties, and analyzes the international way and domestic trend of the reform of current legislative style of abuse crime, according to the main problems of abuse crime legislation and combining the international trend and the demand of our nation, from the new content of defining the crime of abuse in the objective and subjective aspects.

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Faculty of Law




Offenses against the person


Offenses against the person -- China

傷害他人身體罪 -- 中國

Family violence -- Law and legislation

家庭暴力 -- 法規

Family violence -- Law and legislation -- China

家庭暴力 -- 法規 -- 中國



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