The Study On The Decriminalization Of The Crime Of Illegal Birth-control Operation

The core of the population policy in the new era is to encourage childbirth.The “crime of illegal birth-control operation”,which aimed to ensure the restrict implementation of family planning and thus to limit population growth,has played an influential role in the family planning era,but it may become a legal obstacle for the country to encourage more childbearing.The application rate of this crime in judicial practice is low,and it has reduced sharply in recent years,which has even become the "zombie" crime in Criminal Law.In addition,the focus of academic research on this crime has also shifted from the rationality of the “constitution factors” to the issue of “existence and abolition”.Firstly,the essence of the crime lies in the infringement of legal interests,and the national family planning management order as the core legal interests of this crime has undergone significant changes.Besides,the fertility concept of childbearing-age groups has changed from family planning to autonomous childbearing.The situation of choosing sexual-distinction childbearing or having more children than allowed based on traditional concepts has almost ceased to exist.Furthermore,departmental laws and regulations such as China ’s “Population and Family Planning Law” have been constantly improved,and administrative law and other departmental defense lines are sufficient to regulate illegal birth-control operations.Therefore,it is necessary to abolish the crime of illegal birth-control operation,and delete the content of “birth-control recanalization operation,false birth-control operation,removal of intrauterine device” in article 336(2)of the Criminal Law of the People’s Republic of China directly,which can be mainly supervised and regulated by administrative law and other department laws.The act of “operation for termination of pregnancy” which should be included in the criminal circle of the Criminal Law shall be punished according to the Criminal Law article 336(1),namely,it shall be punished as the crime of illegal medical practice.High-quality criminal legislation needs to be reformed,abolished,and interpreted simultaneously.Some acts that are not offensive to legal interests due to societal changes and policy evolution should be decriminalized in time to ensure the substantive rationality of the criminal punishment range,and adhere to the position of Criminal Law as security law and supplementary law,which is in line with the principles of human rights protection and the principle of the austerity of Criminal Law.