Study On Conviction And Sentencing Of Negligence In Guardianship Of Close Relatives

The negligence of immediate family as guardians negligently infringes upon their wards frequently in real life.There are many uncertainties in practice about whether the perpetrator with close kinship constitutes a crime,whether the close relatives can exempt the criminal responsibility,and how to determine the criminal responsibility of the perpetrator if convicted.In view of the close kinship between the perpetrator and the victim of minor children,this kind of family ethical relationship in the field of family affairs has its particularity.Although negligent behavior objectively causes harm to the personal rights of the minor children,due to the consideration of family ethics and social moral system,the conviction and sentencing of such criminal negligence usually adopt different treatment methods in judicial practice,resulting in a huge challenge to unified justice and co-sentencing in similar judicial cases.This paper takes the conviction and sentencing of negligence in close relatives’ guardianship as the starting point to explore whether the negligence in close relatives’ guardianship should be punished and how to determine the criminal responsibility of the perpetrator.The main part starts with clarifying the boundary and scope of negligence in close relatives’ guardianship,clarifying the judicial practice and theoretical difficulties of negligence in close relatives’ guardianship.Secondly,aiming at the viewpoint of advocating the innocence of the negligent perpetrator of guardianship based on the particularity of the relationship between close relatives,this paper refutes the foundation of the theory of innocence of guardianship among close relatives one by one from three aspects: the magnitude of social harm,the overlap of the identity of the perpetrator and the victim of the near relatives,and the parental disciplinary power;This article criticizes the viewpoint of modesty in criminal law based on the claim of near relative status and the viewpoint of innocence based on the traditional ethical concept of family affairs.Thirdly,from the perspective of the theory of guilt,it is demonstrated that the criminalization of guardianship negligence by close relatives conforms to the concept of children’s interests,the basic concepts of contemporary criminal law,and the application of the concept of crime prevention.It is concluded that the perpetrator in guardianship negligence cases should be criminalized.Finally,when practicing specific conviction and sentencing,this article advocates that there is no need to add new charges to specifically regulate the negligence of close relatives in guardianship,and that the sentencing can be lenient according to the specific circumstances of the case.