On The Judicial Determination Of The Crime Of Abusing The Person Under Guardianship And Nurse

With the rapid development of national economy in our country,a sharp change of social structure,leading to the traditional pattern of family life has changed gradually,is not only a member of the family,in which people come into contact with the students and teachers,patient and doctor,the old man and the nursing personnel contact the rising number of opportunities,social life in all kinds of guardian,the figure of caregivers.However,in recent years,the phenomenon that babysitters,kindergarten teachers,nursing home staff and other personnel with the responsibility of guardianship or nursing care abused the people under guardianship or nursing care occurred from time to time,which seriously violated the legitimate rights and interests of relevant personnel and caused widespread concern in the society.On this basis,in order to effectively protect the legitimate rights of the person under guardianship and nurse,the amendment of the criminal law of the People's Republic of China(nine)established the crime of abusing the person under guardianship and nurse.The legal gap has established a strong protective barrier for vulnerable groups such as minors,the elderly,the sick,and the disabled.To explain the identification of the crime of abusing the person under guardianship and nurse in judic ial practice,we should first understand the application of this crime,find out the key points of the problem,and make a determination to realize this crime.Therefore,the author first sorted out the relevant cases of the crime of abusing the person under guardianship and nurse after the introduction of the amendment of the criminal law of the People's Republic of China(nine),and selected two typical cases as the research object,summed up the recent cases.The focus of this crime since the beginning of the year:the identification of abusive behavior;the source of guardianship and care duties,and the identification of"plot is bad" degree.By sorting out the focus of the previous article,we can find that the objective elements of this crime include violation of guardianship and duty of care;the perpetrator commits an act of maltreatment;abuse has reached the severity of the circumstances and the behavior can only be targeted at minors,the elderly,the sick,the disabled and other vulnerable groups in four aspects.A correct understanding of the meaning of guardianship and nursing duty is a necessary prerequisite for the analysis of the crime of abusing the person under guardianship and nurse,and the most critical issue in the meaning of guardianship and nursing duty is its source.Generally speaking,the behavior pattern of maltreatment for the crime of guardianship and caregiver can be identified as"maltreatment",and when"maltreatment"is regarded as the legal term in the crime of abusing the person under guardianship and nurse,it should be identified in combination with the complex situation in practice.The abusive behavior in the crime of abusing the person under guardianship and nurse can be realized either by means of action or omission,and there is also the behavior mode combining action and omission.However,no matter how it is divided,the abusing the person under guardianship and nurse,must reach the"plot is bad"degree to constitute the crime of abusing the person under guardianship and nurse.The targets of the crime of abusing the person under guardianship and nurse are vulnerable groups in the society and they are extremely vulnerable to illegal infringement.Moreover,they have a low ability of self-relief and safeguarding rights after infringement,and need special protection from the law.The identification of the criminal form of the crime of abusing the person under guardianship and nurse should be started from three aspects:the form of cessation,the form of joint crime and the form of number of crimes.It analyzes the form of cessation of the criminal form of the crime of abusing the person under guardianship and nurse,mainly including three aspects of criminal preparation,criminal attempt and criminal suspension.There are a variety of manifestations of the joint crime of the crime of abusing the person under guardianship and nurse,which can be roughly divided into two aspects:joint crime between natural persons and joint crime between natural persons and units.In view of the fact that it is difficult to generalize all kinds of complicated cases such as abuse of guardianship and the number of crimes committed by the custodian in practice,it is possible to select more representative imaginary competing criminals and related criminals to make narratives.Based on the fact that the constitutive elements of the crime of abusing the person under guardianship and nurse are easy to be confused with the multiple charges in practice,it is necessary to define the boundaries of the crime of abusing the person under guardianship and nurse and the related charges in detail.Among them,the most confusing crimes include crime of maltreatment,crime of intentional injury,crime of insulting and crime of provoking trouble.On the one hand,each crime has a different criminal constitution,so it is theoretically possible to distinguish each crime that feels similar.On the other hand,in addition to the differences in the constitution of crimes,identifying the mutually exclusive elements between crimes can help quickly distinguish the boundaries between crimes.The establishment of the crime of abusing the person under guardianship and nurse not only meets the needs of the rapid development of society and the adjustment of criminal policy,but also makes up for the deficiency of criminal legislation.However,as a newly established crime,the crime of abusing the person under guardianship and nurse is still controversial in many aspects,which needs extensive and in-depth research.A detailed determination of the crime of abusing the person under guardianship and nurse is conducive to punishing the abuser's cruel behavior,better protecting the physical health and safety of the abuser,demonstrating the authority of the law,so as to stabilize the social order and promote the construction of a harmonious society.