On The Judicial Determination Of The Crime Of Abducting Children

The crime of child abduction destroys human nature,tramples on public order and good customs,and is often accompanied by crimes such as intentional injury and rape.Child abduction not only seriously infringes on the physical and mental health of minors,but also causes devastating blows to their families.Although the crime of abducting children has been stipulated since the establishment of the criminal law in China,the phenomenon of abducting children is still enduring for so many years.Both in theory and practice,there are many controversies about the identification and penalty discretion of the crime of abducting children.In view of this,this paper intends to analyze the different positions of different courts on the determination of the crime of abducting children in criminal trials through the 406 judgments collected by China Judicial Document Network.Decided that the author respectively from the crime of child abduction of law benefit,constitutive requirements should,illegality,and a duty,by using the method of comparative analysis,empirical analysis by comparing our country and other countries and regions in the process of theory and judicial practice of child abduction crimes have different opinion and practice,further straighten out the crime of child abduction in the characteristics of the constitutive requirements,the respect such as penalty discretion,reflection on the problems existing in the criminal proceedings in our country,and combining with the specific case of judgment,child abduction crimes of criminal proceedings in China put forward feasible suggestions.The main context of each chapter of this paper extends to three aspects.First of all,the author uses the three-level theory of crime to analyze the difficulties and shortcomings of the crime of abducting children in the aspects of constitutive elements,causes of illegal obstruction,liability factors and penalty discretion system,starting from the differences of legal interest identification of the crime of abducting children in the theoretical circle and combining with the legislative value of the crime of abducting children.Secondly,with the sample judgment as the blueprint,it extracts the problems existing in the criminal trial process of our country,for example,the disunity of the identification of legal interests of the crime of abducting children,the vague expression of constitutive elements,the influence of the victim’s commitment on the conviction and sentencing of this crime,the recidivism,the reasonable application of the system of confession and punishment,the sloppy writing of judgment,etc.Finally,combined with theoretical and practical research and drawing lessons from foreign experience,this paper reflects on the specific problems in the conviction and sentencing of the crime of child abduction,and looks forward to the improvement of this crime.After research,the author believes that,first of all,in order to fully protect the rights and interests of children,it is necessary to unify the legal interests of the crime of abducting children,and the viewpoint of "personal freedom and physical safety of minors" is more conducive to achieve this purpose.Therefore,the object of its behavior should include all minors under the age of 18,and guardians who commit abductions should also be convicted and punished for the crime of child abduction.Secondly,minors are not equipped with mature cognitive ability.Therefore,the victim’s promise does not affect the conviction and punishment of the perpetrator of the crime of child abduction.However,the perpetrator can be given a lenient punishment based on the comprehensive consideration of the criminal circumstances.On the contrary,the heavier punishment for recidivism should also be reflected in the judgment result,and the system of leniency for admission of guilt should be actively applied,the punishment and responsibility should be unified,and different sentences should be avoided in the same case.Finally,the making of the judgment should be detailed,careful and reasonable,so that it can play its due reference value and academic research value in criminal case trial.