Shaanxi Haogong Law Firm Criminal Research InstituteArticle Maggie Zhao.
Department At about 11 o'clock on December 11, 2023, in the women's bathroom of a hospital in Nankai District, the masses found a newborn baby. After receiving the alarm, the police quickly rushed to the scene to deal with it. After work, at about 13 o'clock that day, the public security organs summoned Han Moumou, the mother who abandoned the baby, to the case in accordance with the law, and the case is under investigation. Currently, the baby is in good health and has been properly cared for by the hospital's Department of Obstetrics and Gynaecology.
Desertion. a) Concept.
The crime of abandonment refers to the criminal act of refusing to support a person who has the obligation to support the elderly, the young, the sick, or other persons who are unable to live independently, and the circumstances are heinous. This offence is provided for in article 216 of the Criminal Code.
2) Elements of the crime.
1. Object of this crime: The object of this crime is the victim's equal rights among family members. Targets of this crime: Targets are limited to family members who are elderly, young, sick, or otherwise incapable of living independently. China's marriage law clearly stipulates: "Abuse and abandonment between family members are prohibited. It also regulates the maintenance obligations that should be fulfilled between family members. Refusal to fulfil the obligation to support those who can afford it violates the equal rights of the elderly, the young, the sick or the incapable of independent living in the family.
2. Objective elements: This crime is objectively manifested as an act of refusing to support family members who are old, young, sick, or otherwise incapable of independent living, and the circumstances are heinous. According to the judicial interpretation, family members who are old, young, sick or otherwise incapable of independent living refer to those who have the following conditions in the family members:
1) Due to old age, disability, illness and other reasons, loss of ability to work, no livelihood;
2) Although there is a life, but due to illness, old age, disability, can not take care of themselves;
3) Lack of ability to live independently due to young age or mental retardation.
Except for family members with such circumstances, the problem of abandonment does not occur.
1) The perpetrator must have a duty of support, which is a prerequisite for the crime to be constituted.
The obligation to support arises on the basis of the different rights and obligations between three types of family members: support and dependency, maintenance and dependency, and support and maintenance. It is clearly stipulated in the laws of our country.
It is natural and unconditional from the birth of a child. The obligation of parents to support their children is an obligation imposed by society and prescribed by national law, which is both a social obligation and a legal obligation. The same applies to grandparents to their grandchildren, maternal grandparents to their grandchildren, and siblings to their younger siblings, but the legal conditions must be met for such an obligation to arise.
The obligation of husband and wife to support each other is an unconditional legal obligation. Dependency in the narrow sense. The relationship of support between husband and wife must be premised on the relationship between husband and wife, and is a relationship between husband and wife during the existence of the marital relationship.
The obligation of children to support their parents is also an obligation entrusted by society and an obligation stipulated by national law. This obligation is unconditional from the date on which the parents need the maintenance of the child. This obligation is exercised on the condition that the person is incapacitated, has difficulty in living or has difficulty in mobility due to old age, infirmity or illness, and is in need of support, care and attention.
2) The perpetrator is able to afford it but refuses to support it, and being able to afford it refers to having independent financial ability and having a surplus situation that can meet the minimum living standards (at the time, local standards) for himself, his children, and the elderly.
"Refusal to support" objectively reveals the criminal mode of omission manifested in this crime, that is, passively failing to fulfill the obligation to support, such as children not having the obligation to provide for their parents who have lost the ability to work and have no financial support, and children not taking care of their parents who are unable to take care of themselves.
3) The act of abandonment must reach the level of heinous circumstances to constitute a crime. In other words, whether the circumstances are aggravating or not is an important boundary between the crime of desertion and the non-crime. According to the experience of judicial practice, the heinous circumstances of abandonment refer to: serious injury or death of the victim as a result of abandonment;The victim has been abandoned and has no means of living, is displaced, and is forced to beg on the streets;The victim is forced to commit suicide because of abandonment;The perpetrator refuses to make corrections after repeated education, putting the victim's life in a dangerous situation;The means of abandonment are very bad (e.g., in the process of abandonment, there are beatings, scolding, and abusive behaviors) and so on.
3. Subject Elements: The subject of this crime is a special subject, and must be a person who has a legal obligation to support the abandoned person and has the ability to support him.
4. Subjective element: This crime is subjectively manifested as intentional, that is, refusing to support oneself knowing that one should fulfill one's obligation to support.
3) Criteria for filing a case.
Refusal to support an old, young, sick or otherwise incapable person of independent livingand the circumstances are heinous.
4) Penalties. Refusal to support an old, young, sick, or other person who is incapable of independent living, and the circumstances are heinousHe is to be sentenced to fixed-term imprisonment of not more than five years, short-term detention or controlled release.
5) Designation standards.
Distinction between this crime and the crime of ill-treatment.
1. The subject matter requirements are different. The object violated by the crime of desertion is the relationship of rights and obligations between family members to support each other;On the other hand, the object of abuse is a complex object, which not only violates the legitimate rights and interests of family members living together in family life, but also violates the physical health of the victim.
2. The objective aspect is different. The objective aspect of the crime of abandonment is that the elderly, young, sick, or other family members who do not have the ability to live independently, should be supported but refuse to do so, and the circumstances are heinous. The objective aspect of the crime of abuse is that it is manifested in the act of regularly or continuously torturing and destroying the physical and mental health of family members.
3. The main elements are different. The subject of the crime of desertion must be a person who has a legal obligation to support the abandoned person and has the ability to perform the obligation;The subject of the crime of abuse must be members living together within a family.
The subjective aspects of crime are different. Although both offences are intentional in the subjective aspect, the content of their intent is different. The subjective aspect of the crime of abandonment is that the perpetrator refuses to support him, knowing that he or she should fulfill his obligation to support. The intent of the crime of ill-treatment is that the perpetrator consciously inflicts physical and mental torture on the victim.
6. The targets of criminal violations are different. The crime of desertion is committed only to persons who are old, young, sick or otherwise incapable of independent living;And the crime of ill-treatment lives with family members.
The distinction between this crime and the crime of intentional injury.
1. The object elements are different, and the object violated by the crime of abandonment is the relationship of rights and obligations between family members to support each other;The object violated by the crime of intentional injury is the right to physical health of others.
2. The objective aspect of the crime is different. The objective aspect of the crime of abandonment is the refusal to support a family member who is unable to live independentlyThe objective aspect of the crime of intentional injury is that it is manifested as an act that unlawfully harms the physical health of another person. This kind of behavior that harms the physical health of others is generally directly inflicted on the victim's body, such as injuries, stab wounds, burns, etc.
3. The subject elements are different, and the subject of the crime of abandonment must be a person who has a legal obligation to support the abandoned person and has the ability to perform the obligation;The subject of the crime of intentional injury is a general subject.
4. The content of subjective intention is different. The intent of the crime of abandonment, that is, the perpetrator refuses to support him even though he knows that he should perform his or her obligation to support, but also has the actual ability to perform the obligation of support;The intent of the crime of intentional injury means that the perpetrator has the intention to harm the body of another person.
The difference between this crime and the crime of intentional homicide.
1. The subjective aspect of the crime is different. Subjectively speaking, the crime of abandonment is an attempt by the perpetrator to evade or transfer to others the maintenance obligation through abandonment;The subjective intent of the crime of intentional homicide is to deprive another person of his life. Therefore, if the perpetrator attempts to transfer to another person the maintenance obligation that he or she should have assumed through abandonment, his act constitutes the crime of desertion;The perpetrator constitutes the crime of intentional homicide if he or she attempts to kill an infant or an elderly person who is mentally incapacitated or has limited mobility by failing to fulfil his obligation to support.
2. The objective elements are different. In the objective aspect, the crime of abandonment generally refers to the abandonment of the victim in a place where he can obtain assistance, such as the door of another person's house, a train station, a wharf, a street intersection, and so on. The crime of intentional homicide is objectively the placement of an infant or an elderly person with mobility difficulties in a place where there is no way to obtain assistance, for example, by abandoning the infant in a deep ravine;Abandon delirious and difficult old people in wild beast-infested, inaccessible wilderness, and so on.
6) Relevant legal provisions.
1. Article 47 of the "Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly" provides that where a person violently interferes with the freedom of marriage of the elderly, or refuses to support or support the elderly while having an obligation to support or support the elderly, and the circumstances are serious and constitute a crime, criminal responsibility shall be pursued in accordance with law.
2. Where paragraph 4 of article 52 of the "Protection of Minors" has an obligation to support minors but refuses to do so, and the circumstances are heinous, criminal responsibility is to be pursued in accordance with the provisions of article 183 of the Criminal Law.
3. Paragraph 4 of article 52 of the "Law of the People's Republic of China on the Protection of Persons with Disabilities" refuses to support a disabled person who does not have the ability to live independently, and the circumstances are heinous, or abandons a disabled person who does not have the ability to live independently, criminal responsibility is to be pursued in accordance with the provisions of article 261 of the Criminal Law.
4. Paragraphs 2 and 3 of Article 31 of the Adoption Law of the People's Republic of ChinaAnyone who abandons the infant shall be fined by the public security department;where a crime is constituted, criminal responsibility is pursued in accordance with law.
Those who sell their own children shall be confiscated by the public security department and fined;where a crime is constituted, criminal responsibility is pursued in accordance with law.
Wang Xue's and Xiong's second-instance criminal verdict on the crime of abandonment.
On October 22, 2020, defendant Wang Xuemou gave birth to a baby boy in his home. At about 18 o'clock on the same day, after Wang Xue's husband, defendant Xiong, returned home, Wang Xuemou proposed that he had raised two sons and was unable to raise the newborn baby boy, so he discarded the newborn baby boy and let others take it away to raise him, and Xiong agreed. Wang Xuemou then wrapped the baby boy with clothes and a small quilt, and Xiong drove a van to pick up Wang Xuemou and the baby boy at about 19 o'clock that day to find the place where they were discarded. At about 22 o'clock on the same day, when the car drove under the viaduct at the entrance of the vehicle inspection station in Hongyan Town, Jianshi County, the two defendants believed that the place was brightly lit, there were many people, and the baby was easy to be discovered. At about 8 o'clock the next day, when Yu, a villager of Jinyindian Village, Yezhou Town, Jianshi County, found the baby boy at the door of the Hongyan Vehicle Inspection Station, the baby boy had died, and Yu immediately reported the case to the public security organs. It was determined that the baby boy died due to respiratory and circulatory dysfunction caused by being in a low temperature environment.
According to facts and evidence,The original trial court sentenced defendants Wang Xuemou and Xiong X to one year imprisonment and 10 months imprisonment respectively for the crime of abandonment.
The defendants Wang Xue, Xiong and their defenders all appealed, arguing that the original judgment erred in applying the law by not applying a suspended sentence to the second appellant on the grounds that "the act of abandonment caused the serious consequences of the death of the abandoned person". Causing the death of the abandoned infant is a fact that determines whether the second appellant's abandonment is "aggravating circumstances" and constitutes the crime of abandonment, and is not a condition for the second appellant not to be given a suspended sentence. The second appellant requested that the second-instance trial declare a suspended sentence because the circumstances of the crime were relatively minor, he showed remorse, and there was no danger of recidivism, and the suspended sentence was declared to have no major adverse impact on the community in which he lived. Xiong and his defender also appealed, arguing that he was an accessory in the joint crime.
After the second-instance trial, it was ascertained that the facts ascertained in the first-instance judgment were clear, the evidence was credible and sufficient, the evidence listed was legal, the content was objective and true, and it was closely related to the facts of the case. After a comprehensive review in accordance with law, this court confirms the facts found in the original judgment and the evidence listed.
This court believes that respecting the elderly and caring for the young is a fine tradition of the Chinese nation, and it is also the duty of every citizen. In accordance with the provisions of article 17 of the "Opinions on Handling Cases of Domestic Violence Crimes in Accordance with Law" of the "Two Supreme People's Courts and Two Ministries", the part of "punishing the crime of abandonment in accordance with law".The refusal of a person who has the obligation to support and has the ability to support a family member who is young, old, sick or otherwise incapable of independent living is domestic violence of the nature of abandonment. According to judicial practice, the victim who abandons his life and is unable to take care of himselfWhere abandonment is "heinous circumstances" as provided for in Criminal Law article 261, it shall be convicted and punished as the crime of abandonment in accordance with law. In order to evade their obligation to support them, appellants Wang Xuemou and Xiong X abandoned the baby boy at the door of the vehicle inspection station in Hongyan Town, Jianshi County, and then left, hoping that the baby boy would be rescued or supported by others, resulting in the death of the baby boy due to respiratory and circulatory dysfunction caused by prolonged exposure to a low temperature environmentIt should be "heinous circumstances" of abandonment as provided for in Article 261 of the Criminal Law, and the second appellant's conduct has constituted the crime of abandonment.
Appellant Wang Xue's criminal intent to abandon his biological baby, and appellant Xiong X drove with Wang Xue's road to find the place where the baby was abandoned and jointly abandoned the baby, and the two played an equal role in the joint crime, and no distinction should be made between the principal and accessory offenders. Xiong X and his defender put forward the grounds of appeal as an accomplice, but this court did not accept it.
2. The appellant's act of abandonment caused the serious consequences of the death of the abandoned baby, which is not a minor crime, and does not meet the requirementsThe first paragraph of Criminal Law article 72 stipulates that the application of a suspended sentence must first be a legal requirement that "the circumstances of the crime are relatively minor". The original judgment was correct in sentencing the two appellants to fixed-term imprisonment. The grounds of appeal of the second appellant and his defender's request for a suspended sentence in the second instance were not accepted by this court.
2. If the appellant is able to confess his crime after being brought into the case, he may be given a lighter punishment in accordance with the provisions of paragraph 3 of article 67 of the Criminal Law. At the same time, after the second appellant signed the plea affidavit, he raised objections to the sentencing recommendation submitted by the original public prosecution organ at the first-instance trial and requested a suspended sentence, which should be regarded as a withdrawal of the plea. Based on the facts of the crime, the nature and circumstances of the crime, and the degree of harm to society, the original judgment sentenced appellants Wang XueX and Xiong X to one year imprisonment and 10 months imprisonment respectively, and the sentencing was not improper. In summary, the facts ascertained in the original judgment and the application of law were correct, the sentencing was appropriate, and the trial procedures were lawful, and should be upheld. In accordance with the provisions of Article 236, Paragraph 1 (1) of the Criminal Procedure Law of the People's Republic of China, the ruling is as follows:
The appeal was dismissed and the original judgment was affirmed.
This ruling is final.