Study On The Judicial Determination Of The Crime Of Ill-treatment Of Guardians And Caregivers

Since the establishment of the crime of ill-treatment of guardians and caregivers,there have been many problems,such as unclear identification of elements of constitutive elements of crime in both judicial practice and theoretical research.Therefore,it is necessary to systematically study and solve the problems existing in the judicial application of this crime combined with criminal law theory.The paper is divided into five parts.The first part is the proposition of problems and the advocacy of ideas.Injudicial practice,there are some problems in the determination of the crime of ill-treatment of guarded persons and caregivers,such as unclear identification of obligations as acts,inconsistent identification of subjects,vague criteria for judging bad circumstances and unclear definition of the nature of teachers’disciplinary power.At the same time,due to the lag of legislation on the crime of ill-treatment of guardians and caregivers,there are deficiencies in citizens’legal normative consciousness and legal trust feelings,as well as the irreversibility of mental injury and the attribute requirements of abstract dangerous offenders,it is necessary to solve the problems in judicial practice from the perspective of positive general prevention theory,emphasizing the expansion and early prevention of this crime.In the second part,we should adopt the unified theory of form and substance as the basis of obligation occurrence:the result reason,process and domain domination theory;on the basis of this theory,we should flrther clarify the difference between guardianship and care obligation,that is,guardianship obligation comes from legal provisions and contract entrustment,and care obligation comes from the dominant supervision obligation of hazard sources and the care arising from special relationship.Care obligations also include care obligations arising from the domination of dangerous areas.In the third part,whether in practice or in theory,there are disputes about whether family members,cohabitants and primary and secondary school teachers can be eligible subjects for the crime of abusing guardians and caregivers.Firstly,it should be considered that the crime of ill-treatment and the crime of ill-treatment of guardians and caregivers are imaginary competing relations,and family members have the identity of guarantor of this crime.Secondly,according to the theory of result reason,process and domain domination,the author argues that cohabitants have the duty of guardianship or care,and can be the guarantor of this crime,and the omission of cohabitants as secondary obligors should also constitute this crime.Finally,the rationality of primary and secondary school teachers’identity as subject of the crime is obtained by combining the analysis of form and substance.The fourth part is about the judgment standard of "bad plot".Firstly,"bad plot"belongs to the constituent elements of quantity,and the position of quantitative factors in the constitution system of crime should be clarified.It should be considered that the constitution of crime includes the constitutional elements of quality and quantity,and the constitutional elements of quantity include the objective elements of crime,not the subjective elements.Therefore,the object of evaluation of "bad circumstances" only includes the objective elements.Secondly,the criteria for evaluating the "bad circumstances" of the crime should be determined from two aspects:the protection of the legal interests of the crime and the difference from the administrative violation of the law;"bad circumstances" evaluate the objective circumstances within the scope of the legal interests of infringing the victim’s right to personal health,not the circumstances of infringing other legal interests such as property;the evaluation of "bad circumstances" is not the objective circumstances to achieve the level of administrative violation of the law,and the evaluation of "bad circumstances" is not the objective circumstances to achieve the level It is an objective circumstance to achieve the degree of criminal violation.Finally,by enumerating five evaluation objects of "bad plot",the quantitative control between administrative violation and criminal violation is analyzed concretely.The fifth part is about the validity of the right to punish teachers at home and abroad.Teachers’right of punishment is based on educational purposes,and its legitimacy is the result of measuring legal interests.Teachers’ right of punishment should be considered as a legitimate reason to prevent the illegality of the crime of abusing guardians and guardians.At the same time,the exercise of teachers’disciplinary power should follow the principles of education,legitimacy,rationality,necessity and procedural.