On The Crime Of Abusing The Person Under Guardianship And Nurse

The phenomenon of mistreatment of vulnerable groups in the current society is becoming more and more serious,which has aroused widespread concern from all.But the existing crime of abuse can't regulate all kinds of abuse between non-family members.The Amendment to the Criminal Law(IX),adopted on August 29,2015,added the crime of abusing the person under guardianship and nurse,which will effectively combat the abuse in kindergartens,nursing homes,hospitals and other institutions.However,at the same time,there are still many problems,such as the specific types of maltreatment,the standard of judgment of “aggravated circumstances”,the boundary between the crime with other similar charges and so on.According to the juridical practice,the author deeply discusses this crime so as to accurately regulate the mistreatment under guardianship and nurse.This article mainly includes four parts:The first chapter is the overview of the crime.The author briefly introduces the practical experience in the extraterritorial legislation,and stresses the significance of the crime.At the same time,according to the judicial application and typical cases,this paper puts forward the dispute focus on this crime.Chapter two studies the composition of this crime.This crime infringes upon the rights to physical health and human dignity.The objective aspect includes the meaning and specific forms of maltreatment,the criteria of “serious circumstances” and so on.If the behavior object are infants,seriously ill patients or disabled persons,then the “abuse” in this crime does not have the characteristic of “consistency”;Abuse includes two ways of action and omission,pure mental abuse can be criminalized;The “serious circumstances” can be comprehensively analyzed from subjective and objective aspects,such as motivation,means,duration and so on.The subject of this crime includes natural persons and units,which mainly involves the recognition of the responsibilities for guardianship and care,and the determination of unit crime.The author focuses on four common controversial issues in determining nursing duties.The subjective aspect of this crime can only be intentional.The third chapter is about the limit to this crime and relevant accusations.The author compares this crime with the crime of abusing a member of one's family and abandonment.The differences between this crime and the crime of abusing a member of one's family are subject,object,target,prosecution mode and penalty setting.This crime is a supplementary provision to the crime of abusing a member of one's family.The main differences between this crime and the crime of abandonment lie in the scope of the subject and the specific manifestation of omission.The fourth chapter studies the criminal pattern of this crime.Because of the identity crime,the controversial problem of joint crime between the person with identity,the person without identity and the person with the same identity is introduced.In addition,since the third article of this crime stipulates that “In case that the behaviors as mentioned above and other crimes are committed at the same time,relevant people or units will be convicted of the more serious crime and punished”,the author analyzes the problem of imaginative concurrence of this crime.