The Light Punishment Of "Treating Violence By Violence" Crime Made By Battered Women Under Domestic Violence

Domestic violence has always been a hot social issue.It has permanent and tremendous damage to the physiology and mentality of battered women.In recent years,more and more battered women,changing their character from victim to criminal,choose to commit a crime of treating violence by violence,because they cannot stand the longtime domestic violence.As the frequent occurrence of domestic violence cases,the improvement of the legislation about anti-domestic violence is urgent needed.Therefore,the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security and the Ministry of Justice jointly issued the “Opinions on Handling Domestic Violence Cases According to Law” in2015.And on March 1st,2016,the “Anti-Domestic Violence Law of the People’s Republic of China” was formally implemented,which indicates the improvement of Chinese legal system regarding the anti-domestic violence.This also provides strong protection for the women who have suffered from the domestic violence,as well as the crime of treating violence by violence have shown a trend of lightening punishment in recent years.However,in the judicial practice,the judgment results of this kind of crime still have some problems such as the nonuniform penalties and partial heavy punishments.There are two reasons for this kind of issue.On one hand,currently China does not have clear legal provisions on the applicable standards of sentencing circumstances;on the other hand,the judicial authority often value conviction and despise sentencing,they did not fully consider the discretionary and statutory circumstances of sentencing.When the judges trial battered women who have committed a crime of treating violence by violence,the factors such as low personal danger of battered women,the target of the crime(only the male perpetrator),and obvious faults of the perpetrators of domestic violence should be taken into consideration.The determination of penalty for the battered women should consider the reasonable circumstances of sentencing and the degree of the crimes.Only punishing the battered women by cruel penalty is the fairness,utilitarianism and legitimacy that law emphasizes.This paper studies the application of light punishment of the crime of treating violence by violence,and analyze the feasibility of applying the theory of justifiable defense,the theory of defensive necessity,the theory of anticipated possibility,and the theory of victim’s fault.As the social and legal environment in China is different from the foreign countries,the author does not agree with the opinion that justifiable defense or excessive defense can be used to criminalize or reduce the punishment under any circumstances,and also does not agree with the suggestion of transplanting the western theory “Battered Woman Syndrome” to expand the understanding of the conditions ofjustifiable defense.However,the author think that it is reasonable for the application of defensive necessity or excessive necessity in some confrontational situations,meanwhile the author suggest to incorporate the defensive necessity into the Chinese necessity system.In addition,in order to unify the sentencing standards of crime of treating violence by violence,the author believes that the theory of anticipated possibility can be transplanted into Chinese legal system and the theory of victim’s fault can be regarded as the statutory sentencing circumstances.In order to ensure the unification of sentencing standard and the realization of light punishment for battered women.First,the number of expert witnesses participating in the trials related to domestic violence should be increased;second,increasing the application of probation system in this kind case should be increased;third,the sentencing standards for such case can be confirmed through the guiding cases by the Supreme People’s Court.This paper is divided into seven parts,in addition to the introduction and conclusion,the body part is a total of five parts.The first part is an overview of the crime of treating violence by violence and the trend of lightening punishment to expound the concepts of such crime and light punishment.The second part mainly focuses on the statistics of 104 cases of battered women who committed crimes of treating violence by violence from 2015 to 2019,as well as summarizes current situation of light punishment and the existing problems in the judicial practice.The third part mainly discusses the feasibility of light punishment theory.The fourth part analyzes the light punishment of cases of battered women in different countries and regions who treat violence by violence,and author tries to find out some experiences that China can learn from.In the fifth part,some reasonable suggestions are put forward from legal and judicial aspects on the application of light punishment for battered women in the crimes of treating violence by violence,so as to promote the unification of sentencing standards,so that battered women can avoid severe punishment and return to society as soon as possible.