How to redeem the hustle and bustle of public opinion of "abduction of children's maximum 5 years"?

Sun Haiyang suspected that the traffic jams were minimal:

How to redeem the hustle and bustle of public opinion of "abduction of children's maximum 5 years"

On June 14th, Sun Haikai, one of the prototypes of the movie "Dear", posted a prosecutor's sentencing proposal on the Internet. Wu Moulong, the suspect of the abduction case, was proposed to be sentenced to 5 years in prison, causing netizens to pay attention to Essence He believes that the suspect's sentencing proposal is too light, and he is preparing to file a civil lawsuit against the suspect, claiming 5 million yuan.

Prosecutors' sentencing suggestions are only a "suggestion" made to the court, and it is not forced. The final penalties of Wu Moulong and others still must be cut off in accordance with the facts of the law and the evidence confirmed by the law and trial. However, from the reasons proposed by the prosecutor, it is not easy for the court to go beyond the proposal of the prosecutor's proposal. The highest sentence of abduction of children is 5 years. If you have to referee for 5 years, you must first overthrow the prosecution's prosecution. In judicial practice, such cases are rare.

Why is the prosecutor's sentencing suggestion and the public's expectation of fair punishment? After the revision, the current criminal law has the highest sentencing of trafficking, but this is only as far as "Article 240). Those who trafficking women and children shall be imprisoned for five years and less than ten years, and shall be punished; in the statutory situation, it may be sentenced to more than ten years in prison or life imprisonment, and a fine or confiscation of property will be punished. As long as the "trafficking" is determined, the criminal liability is in prison for 5 years.

However, in the prosecutor's sentencing proposal, the charges of suing Wu Moulong applied to Article 262 of the Criminal Law, that is, the crime of deceiving children. If it is strictly in accordance with the law, the crime of committing this alone can indeed be sentenced to more than 5 years in statutory maximum prison.

Why are they both abducted children, but the criminal law is divided into two different charges of "traffic" and "abduction", and the legal responsibility is so different? The main reason for supporting this legislation is: the subjective aspects and objects of the two sins are different. The crime of abducting children is mainly to adopt or call or slavery children, and the crime of trafficking for children is mainly to greedy money. The purpose of "abduction" is to sell profits. In terms of objective elements, the family relationship of others and the legitimate rights and interests of children are violated by the crime of abducted children, and the person who traits for children is the personal freedom of others. In comparison, abduction of children is less subjective than trafficking children, and it is not advisable to use the same crime and punishment.

But this distinction, whether in the theoretical world or in judicial practice, has always had a lot of controversy. Not to mention "abduction" is a means of "trafficking". In terms of the consequences of harm, the abducted children were forced to leave the native family because of the "abduction" behavior, causing human tragedy. The discrete of this blood relationship is the purpose of whether the primary criminals are greedy for money, or whether there is indeed a collection of money, and there is no direct causal relationship.

What's more, children who are still in the stage of non -civil behavior or restricting civil behavior have the right to punish family relationships. different. Just as long as the young girl under the age of 14 has sex, the criminal law is determined to be rape. She (young girl) voluntarily (agreed) does not constitute a defense of rape. Special protection for young girls stems from the law that the young girl does not have asexual consent.

In the trafficking crime, children also have no right to make such an consent: walk with a stranger and leave their legal guardians forever. The consequences of this "abduction" must only be borne by the "abduction". Any consent made by the abducted children does not have the legal effect of "consent".

In judicial practice, the crime of "abduction of children" has actually become a "trafficker". Many trafficking crimes, long age, is not easy to obtain evidence. Most of the trading transactions are carried out in cash, lack of physical evidence and other proof materials. As long as the trafficking is not allowed to collect money, it is not for the purpose of greed, and the criminal responsibility will be greatly alleviated. Obviously, this system design not only cannot achieve the original intention of "adaptation of crime and punishment", but adds many difficulties in investigation. In many cases, the judicial disposal cannot meet the public's expectations of justice.

These are also the main reasons that the author opposes the establishment of two different crimes in accordance with "traffic" and "abduction" in criminal law. Of course, in terms of legislative design, according to the differences in subjective malignant and objective behaviors, under the same crime, different criminal forms such as "turbulence", "abduction", and "trafficking" can be treated differently. For example, traffickions such as the deduction of Qian Gui, such as the confirmed buyer, are regarded as the aggravated plot of this crime, rather than open a back door outside the "trafficking", leaving social scars that are difficult to smooth.

Wang Lin

(The author is a person in the legal community)

- END -