Study On The Legislation Of The Crime Of Abandonment

The crime of abandonment is among the oldest crimes and one of the moreimportant crimes in human history. However, with its simple contents and form, ourcurrent abandonment law does not match the importance of this crime. For thelegislative thoughts, our law-makers are trying to punish the family members who donot fulfill their statutory duty of maintenance, in order to strengthen the ethic duty ofmutual support within the family, and ultimately protect rights of life and health of thefamily members without the ability to live independently. With a social backgroundwhere family organizations are stable enough to play the role of the tiniest cell of thesociety, this type of legislation may help maintain the ethical order of family andsociety as well as protect the rights of life and health of the abandonee. But withchina’s situation that the social structure, life style and human relationships aretremendously changed, it is hard to effectively protect the rights of life and health forthe people without the ability of self-rescue by maintain the ethic order of families.The system drawbacks caused by the legislative ideology of our current abandonmentcrime have lead to a flawed system of crimes which was originally designed to protectthe rights of life and health. It is in this context that the author studied and wrote thispaper. In this paper, the author comprehensively used legality analysis, comparativeanalysis, case analysis and historical analysis to put forward and justify the legalsuggestions of reconstructing the abandonment crime law of our country based onanalyzing the deficiencies of China’s current abandonment crime law and by drawingon from the legislation experiences of “abandonment crime of a person with a legalobligation” in the civil law system, and combining the corresponding theory ofcriminal law. Chapter one brought forward the question by analyzing the reality facing ourcurrent abandonment crime law. First, it observed abandonment crime from thehistorical evolution perspective, and revealed the basic development vein afterinvestigating the legislation evolution course. Then the author made an in-depthinterpretation of current abandonment crime legislation based on the general theory.①On this basis, by introducing real cases, the author revealed the challenges facing ourabandonment crime legislation: the deficiency of life and health rights protection incurrent mode of legislation. Firstly, the definition of obligations is too narrow toeffectively protect life and health rights of the abandonees with non-maintenancerelationships; Secondly, with the lack of specific provision for “the flagrantcircumstances” and the obscure criterion for incrimination, it is hard to rigidly protectthe rights of life and health for dependents; Thirdly, the legal punishment range issingle and it is hard to realize the balance of sentencing as well as gradient protectionof life and health rights; Finally, the legal punishment for”abandon someone to hisdeath” is on the low side, which cannot realize the penalty balance between life rightsinfringements and health rights infringements.The second chapter is aimed to put forward some initial suggestion to solve therealistic difficulties challenging our abandonment crime legislation through exploringthe relevant legislation of the civil law system. That is to reconstructing ourabandonment crime legislation by drawing lessons from “abandonment crime of aperson with a legal obligation”. First, this chapter explored the abandonment crimelegislation of the civil law system from two perspectives (legislation permutation andlegislation type), to provide historical grounds and practical examples for thereconstruction of our legislation. By tracking the evolution of laws from foreigncountries such as ancient Rome, Germany, France, Japan, we learned that theabandonment crime in the civil law system morphed from the type of family crimes tocrimes violating life and health rights. However, the main types of the abandonment crime in the current civil law system include abandonment crime of a person with nolegal obligation, abandonment crime of a person with a legal obligation, abandonmentcrime leading to casualties and the criminalizing of not to give help with others’ peril.Based on the examination of foreign abandonment crime legislation, the authorbelieved that the foreign legislations could help solving our legislative difficulties inthis area. At the end of this chapter, the author pointed out the basic ideas forimproving our abandonment crime legislation: reconstructing our legislation on thebasis of legislation mode of “abandonment crime of a person with a legal obligation”.The third and fourth and fifth chapter chapter explained the rationality toconstruct our “should-be” legislation of abandonment crime under the framework of“abandonment crime of a person with a legal obligation”. Chapter three analyzed the”should-be” legal interests. In my opinion, the positioning of the legal interests ofprotection has ideological guiding significance to the specific setting of a crime. Itdecides the conditions for the establishment and levels of punishment of a specificcrime. Our current laws have positioned the legal interests of abandonment crimes asthe rights to receive maintenance, with the life and health rights of the dependents in asubordinate position. This can easily lead to confliction between the family ethics andthe rights of life and health, and won’t help protecting the legal interests of life andhealth rights of the dependents, and cannot achieve the protection of the life andhealth rights of abandonees with non-support relationship. Based on the premiseanalysis of social foundations and criminal law foundations of legal interesttransformation, the author believed that the essence of our abandonment crime shouldbe positioned as infringement to the rights of life and health of the abandonee.Then, Chapter four researched the setting of behavior pattern of ourabandonment crime on the “should-be” level. From the author’s perspective,positioning the legal interests of abandonment crimes as the life and health rights ofthe dependents, simply and limitedly, wouldn’t be commensurate with the target ofimproving our abandonment crime legislation directly that we aspire to. Therefore,the conception that protect the legal interests of our citizen’s life and health rights should be carried out through the legislative formulation of the behavior pattern of ourabandonment crime in detail, so as to achieve the goal of perfecting legal system.Based on the above consideration, to delimit a criminal circle rationally, and to realizethe balance between crime and penalty, the author pointed out that we should separatethe potential damage offence and the aggregated consequential offense based on theseverity of the nature of the abandon behavior, and with corresponding legal penalty.Compared with our current legislation mode of abandonment crime, the“abandonment crime of a person with a legal obligation” mode is more helpful torealize such a legislation idea.Chapter five researched the setup of protection obligations of our abandonmentcrime on the “should-be” level. First, the author pointed out that the “abandonmentcrime of a person with a legal obligation” from abroad should be considered as a pureomission offence. Then the author analyzed the social foundation, moral foundationand occurrence basis of the setup of protect obligation in our abandonment crime laws.As to the social foundation, the author believed that with the social transformation anddisorder of morality and ethics, the laws is bound to rise, and the ethic obligation ofmutual support is bound to be defined as a legal duty (protection obligation), theformer litigants with fostering relations may further be expanded to litigants with”protection obligations”. As to the moral foundation, the author believe that the peoplein responsibilities with special identities have the obligations of helping those withoutself-rescue abilities when their lives and health fall into danger due to old, young ordisease etc, and are not allowed to abandon them. The behavior of breaking protectionobligation hits the moral bottom line, and cannot be regarded as equal to the behaviorof “not giving help with others’ peril” which breaks emergency aid obligation.Chapter six offered concrete proposals for reconstructing the law of currentabandonment crime, which include the following: As to the system position ofabandonment crime, the author believed that if the crime is considered to bedangerous to infringe rights of life and health, it should not only be included into thecrime group of life and health rights infringement, but also be placed behind the crime of inflicting serious bodily injury; As to the conviction of the crime, the author offeredlegislation ideas on objective elements (protection obligation, object of the action,behavior content), subjective elements (intentional damage) and the aggravatedconsequence for abandonment crime leading to casualties and so on. In addition,detailed conceptions for improving statutory sentence are discussed here.In the last part of the paper, the author highlighted that the abandonment crime isnot only criminal illegality but also a compelling social problem. The solution toabandonment is not enough by modifying laws. We need some social policies andmeasurements from various aspects of politics, economy and culture, to eliminate thesocial factors of crime production, and to better prevent the crime.