The Butcher's Wife in the case of battered women and criminal as the new thinking
【Summary】 less favorable relative to economic proposal of criminal policy, there is reason to make us pay more for battered women Butcher's Wife of judicial tolerance and humanistic care. In accordance with the provisions of the Criminal Law, drawing on Anglo-American and other
Western countries of "battered woman syndrome" theory, that the act should be established over-defense or self-defense; again from the perspective of
looking forward to the possibility of sentencing, as well as looking forward to the possibility of whether the degree of Further, where appropriate, to reduce or waive the penalty for battered women and punishment; the development of special judicial interpretation or quasi-
judicial nature of the acts clearly explained Shen, applicable standards, announcing some typical examples of success to guide decisions throughout the criminal trial of "The Butcher's Wife Abuse" case sentencing, it gradually moved toward a relatively uniform light punishment-oriented, and
reflects the relative economic degrees of strictness in criminal policy, which should have the national respect for and protection of women's human rights meaning.
Key words battered Butcher's Wife / over-defense / self-defense / looking
forward to the possibility / light punishment of
The case of battered women and murdering her husband belong to a special criminal cases, in criminal law and protection of human rights
concepts highlight the growing today, if its the same as ordinary murder cases, in the conviction and sentencing of domestic violence on the neglect of special facts and circumstances, neglect is our country, Some of crime constitutes a theory, rational learning of similar cases abroad,
convicted and punished for the results of theory and practice, without regard to battered women's basic human rights guarantees, it is impossible
to resume play already devastated the role of regulator of social relations, much less possible legal effects and social effects of reunification, even counterproductive.
1, less favorable relative to economic policy and the battered women in criminal cases Butcher's Wife
At present, the less favorable economic criminal policy relative to
China's judicial and penal law scholars unanimously endorsed the basic criminal policy. The proposal of this policy indicates that China has more than two decades of sustained "strike hard" rational reflection and criminal policy of "combining punishment with leniency" basic criminal policy of the inheritance and promoted, is in building a socialist harmonious society, against the background of the civilization and progress of criminal law to reflect, but also widely applicable to the
international "gently heavy" the polarization of the criminal policy of the rational response.
On the basis of an accurate conviction in the correct sentence is less favorable relative to economic criminal policy in an important part of our criminal law sentencing circumstances whether there is express provision under the Penal Code standard, classified as a statutory sentencing discretion of sentencing the plot and the plot, so-called
statutory sentencing plot, refers to the Penal Code expressly provides for
judicial discretion of penalties should be considered the plot. ? The so-
called discretionary sentencing plot refers to the recognition of China's criminal law, from the practical experience summed up the trial, the harm to society and to the behavior of actors have an impact on the degree of Dangerousness, in the sentencing flexibility, discretionary application of a variety of facts. ? is the so-called "law is limited and the situation
Wonderland", the reality of the facts of the case are often diverse and
complex, while the statute once a down, they must be abstract and highly general. The case of battered women and murdering her husband and the fact that both belong to the discretion of the Criminal Code expressly provided the circumstances (as stipulated in Article 67 of the Criminal Code voluntarily surrendered themselves; Penal Code section 232 after the paragraph, "less serious, a fine of more than three years to ten years term imprisonment "), that is, statutory penalties plot, there are a large
number of the Criminal Code does not expressly provided for the discretion of sentencing plot ?. Though the circumstances of these discretionary sentencing there is no specific provision in the Penal Code, but this does not mean that the plot does not apply to sentencing discretion of the
appropriate legal basis for judicial personnel can totally depend on Article 37 of the Criminal Code (non-penalty sanctions), section 61
(sentence is based) and section 63, paragraph 2 (discretion to reduce penalty), the requirements of "committed a minor crime", "criminal plot" "plot" or "special circumstances" referred to below with the corresponding theory of criminal law to carry out screening .
2, "The Butcher's Wife abuse" behavior and over-defense, as well as
the relationship between self-defense
Summary of China's Criminal Law Article 20 stipulates that the establishment of self-defense act, there are five conditions must also have the following: first, there is a realistic illegal infringement;
second, illegal abuse must be ongoing; Third, we must have a defense awareness; fourth the target must be to defend himself against illegal; fifth, there is no obvious cause significant damage to the extent than necessary.
Combined in recent years, more than occurred in the case of battered women Butcher's Wife, we can analyze one by one.
1. There is the reality of the illegal infringement. This is the establishment of self-defense or over-defense of the cause of the
conditions. On "illegal abuse", the Penal Code have not been clearly specified, but according to the legislative spirit of self-defense,
combined with judicial practice in general to self-defense in "illegal
abuse" is defined as a serious nature, emergency pressing against a greater risk of illegal
Behavior. The Butcher's Wife on the case of battered women, I believe that the victim (that is, against domestic violence, illegal) acts is the defendant to life, body and spirit of urgency, continuous, severe violated, the defendant's conduct to the victims continued right to life and physical health of a significant response to the threat.
2. Unlawful infringement under way. Self-defense or over-defense only
for the implementation of the ongoing illegal violations, it is the timing
of the implementation of self-defense condition. The so-called "progress"
refers to illegal violations has already begun, not ended.
Whether the ongoing violence against the victim, especially the violence against the start time now is practice and theory of the
defendant "abused Butcher's Wife" behavior can identified as over-defense
or self-defense point of greatest contention. With regard to criminal violations of the start time, the Penal Code against the theoretical into the scene, said to proceed, said directly to face that and comprehensive, said ?. Most people believe that battered women defendants in the case of The Butcher's Wife "to violence with violence", the previous domestic violence has ended, and then once violence has not yet begun, is not aimed
at being violated, so defense is not timely. I think that such a comprehensive understanding of any errors. In the past, practitioners and theorists, we are faced with more of a single one-time violations, but in
reality the majority of domestic violence with a continuity, urgency, and long-term characteristics, therefore, I advocate a combination of that. That in normal circumstances, should proceed with the implementation of criminal trespass against the person, at their beginning (set say), but
the real threat in the illegal infringement is clear, urgent and can wait until too late to start after the implementation of the results to mitigate or avoid harm, but also shall be deemed unlawful infringement has already begun (either directly facing say). ? In my opinion, the
interpretation of the illegal infringement, not only should include a single one-time violations, and should include continuous, urgent, and long-term violated, this is "illegal abuse" should be covered. For continuity, urgency and long-term violated, they can not be isolated to
determine if it is going on but should be used as a complete implementation of the process to judge the behavior.
At present, the United States, Canada and other Western countries to adopt within a certain range of "battered woman syndrome" defense can be appropriate for us to learn from.
"Battered women syndrome" comes from the last century, the late 60s early 70s the rise of feminism in the West of legal reform movement. Feminist agreed that the concept of law is built on defensive behavior in the male on the basis of the standard, because defense killings of women for the behavior is different from men, it is not suitable for battered women against violence in response. To this end, feminists proposed the
concept of criminal law should reflect the defense of violence against women in the experience of self-defense, characteristics. This theory was
first proposed by the American psychologist, feminist pioneer Leiniwoke (Lenore Walker) that, under a long-term living in abusive relationships of
women, suffering from "battered women's syndrome", with this syndrome, 2 characteristic of women in understanding the defensive behavior of great significance. First, the "cycle of violence", that women in violent
relationships can be foreseen under the next round of violence in time of occurrence and severity, as a husband to his wife's violence is often showing a stage of circular features, means that women from the conventional violence subtle changes in the way more dangerous in the
sense of imminent violence, that they can feel they are faced with the deadly threat of unlawful infringement; second is "learned helplessness", that is, under domestic violence, battered women often have a species
caught in a sense is difficult to leave this relationship. Battered women often abused and weakened the response to battered women's initiative, they become negative, passive, no longer believe their efforts will or is likely to lead to any useful results, they understand that in any case is
difficult to escape the violence. Does not help to make it difficult for them to leave the relationship between such violence and can not change the status quo and control developments. Battered women's syndrome, mostly
in the form of expert testimony in court be on display. ?
Indeed, formed in the Western countries, battered women's syndrome theory, because of their own has yet to be perfected and China's current legal evidence there was no expert testimony of this type and other
reasons, but not all applicable in our country, but the absorption of a reasonable portion of them in criminal justice found that battered women "to violence with violence" behavior course ought to the right choice. In
my opinion, these two features, in our criminal justice are available to be learn from them.
First, the "cycle of violence" is sufficient to explain the characteristics of battered women face a perpetrator of violence is of a continuous unlawful infringement, urgency and long-term in nature. As a
long-term victims of violence, battered women, is very good at the behavior of the perpetrators received signals, knowing an imminent threat of violence and death. France have yet to hurt the feelings of the state, are generally not aware of what that is, or what these hidden objects. But the right to force the law against the feelings of exposure, so that the
truth plain to under the blue sky and white sun, and was forced to wield their influence. ? For a single one-time illegal violations Shangqie
allowed defense, but for the suffering of continuity, urgency and long-
term nature of illegal acts against the defense allowed, it is difficult
to demonstrate self-defense system of criminal law legislation designed to protect the weak mind, significantly lost just .
Secondly, the perpetrators of violence to battered women began demanding the implementation of domestic violence to defend the conditions are consistent with the timing of defense is inconsistent with common sense common sense. As the battered women and violence against her husband is very poor on the balance of forces in the violence of the time,
battered women in general did not dare to defend. Because of this terrible into a sense of battered women in order to shake off the yoke of this spirit is precisely what they were forced to acts of self-defense last-
ditch effort of self-redemption. For contempt for violation of rights of
their own personality to exhaust all possible means to strike back is everyone's own obligations. ? "the criminal law has always been
reasonable and sensible communication, full of humanity and human caring spirit means." ?
Again, for the implementation of the perpetrators of crimes to give up to repeat the abuses committed, our刑法理论界and practical
understanding of prevailing industry Shangju suspension rather than a crime that constitutes a crime, attempted to give way, and for being a
continuous, urgency and long-term illegal violation of the abused, it does not recognize the illegal violations of their perpetrators have been embarked on, or the reality of their legitimate rights and interests of the threat is imminent, do not give his or her corresponding system of relief, obviously with the guilt of punishment and the criminal law suit the basic principles of equality before the divergence, and the Criminal Code to establish self-defense system to protect the weak self-help of the
criminal policy goes against the original intention.
Therefore, the case of battered women and murdering her husband, the husband abused his wife a few years or even 10 years, a time for assault, violent acts, has indeed been completed, but for the whole family violence is concerned, is far from over, the defendant's personal safety at all
times facing the threats, abusive husband did not give up the clear intention of abuse, but time and time again intensified. Therefore, if the
husband to his wife a few years or even 10 years of domestic violence as a complete course of conduct, then that is still illegal violations under way. If the act is only a brief cessation of the abuser, victims of domestic violence at any time have reason to believe that aggressive
behavior will continue, they have to take retaliatory actions against the perpetrators. It can be considered at this time the urgency of the requirements had been met. ?
3. A defense awareness. This is a self-defense or over-defense of the
subjective conditions for the establishment, that is, practicing self-
defense, must be for the protection of national, public interest, I, or others, personal, property and other rights violations against the ongoing illegal intentions. The case of battered women and murdering her husband, the accused in order to protect their personal rights and the rights of others (mainly their children) from being violated, they are no longer subjected to violence to make their abuse and mental threat to the
implementation of defensive behavior, which is clear.
4. For the unlawful implementation of defense against himself. This is the implementation of self-defense or the over-defense behavior of
their conditions. In the case of battered women and murdering her husband,
the accused person did not unlawful infringement of persons other than the defense, but only against himself for the implementation of criminal defense. Therefore, the defendant's actions are consistent with self-
defense or over-defense of the fourth condition.
5. No obvious cause significant damage to the extent than necessary. This is the limit established in terms of self-defense, but also over-
defense self-defense with the only difference. Some scholars believe that this constitutes a self-defense is based on the two men fighting in pubs as a model designed for women, sex discrimination. Because of violence and victims of domestic violence are often the power disparity between the victim, physical structure due to the reasons for violence against human
opponents far, coupled with long-standing victims of domestic violence
against the formation of the psychological sense of helplessness to make it feel there is no way there is no way capable of acts of violence to contend with violent people. If the request to victims of domestic violence could not be more obvious than in the defense, when the extent necessary to cause significant harm, then its unfair. In its long-
suffering victims of assault cases, the conduct of the accused because the
victim was extremely nervous, in the counter-attack, with a reasonable
fear of death: if not kill the victim, then escape the fate of being killed. (11)
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I believe that this view is questionable. Although we need to refer to the "battered woman syndrome" theory of a rational point, but need to go. To battered women "to violence with violence," acts with the limits of self-defense can not be contrary to the principle of legality, it should
be the limits of criminal law in accordance with the conditions shall prevail. In accordance with academics and practitioners of the pass, if that defensive intensity against the intensity of equal, then there is no limit to the conditions of more than self-defense; defensive intensity
while over against strength, but this strength is clearly against the curb necessary, also shows that the conditions did not exceed the limits of self-defense; only defense against the intensity of very clearly larger
than the intensity, which intensity is obviously not necessary to curb abuses, nor excessive disparity that is, fully redundant, in order to that is beyond the limits of self-defense condition. (12)
According to the above standards, identify the defensive behavior of
all battered women are all part of over-defense self-defense, or that both
the one-sided, because the self-defense with over-defense in the cause of
the conditions, timing conditions, the subjective conditions and objects are the same conditions , the limit condition is a key factor in distinguishing between the two. Judicial practice, the perpetrators and victims of domestic violence as a husband-wife relationship, the two
sides, after all, the existence of certain interests and kinship ties, the
majority of perpetrators of violence against battered women's lives is not the intent and the corresponding serious violations, this time for battered women behavior of the offender to kill the majority are significantly more than the extent necessary to cause significant harm to constitute over-defense; only when a small number of perpetrators of violence against battered women do have the intention of life and death and the imminent threat of violence when the violence against battered women would be were killed by acts of self-defense is consistent with the
limits of conditions for the establishment of self-defense and acquitted.
3, "The Butcher's Wife abuse," the act was "looking forward to the possibility of" theory of the possibility of
In recent years, some scholars have proposed to continue to look forward to the possibility of the theory to address the behavior of battered women and murdering her husband and the issue of legalization. Looking forward to the possibility of the so-called theory refers to the
behavior of human existence in order to be able to say the responsibility, in addition to the responsibility of the perpetrator has the ability, responsibility, or responsibility for errors intentional, the behavior of
human existence and thus also need to implement the expectations of the possibility of appropriate law. That is, the behavior of the specific situation, we must be able to look forward to the implementation of actions do not constitute elements of the offense while in line with the
implementation of other legal acts. (13) in Germany and Japan, and other civil law countries, is generally believed that the possibility of a
super-looking forward to the responsibility of law negates the subject.
The concept of crime in our country constitutes a theory of criminal law and civil law countries in the composition of elements is not the same concept. The concept of crime in our country constitutes a crime, all of the components set up, so the elements that constitute a crime, that is
the element of a criminal offense and should be investigated as criminal elements that constitute a crime and the illegal element, the responsibility of the elements co-exist. While in civil law countries the
composition of elements of criminal law theory is to set up the first element of crime, culminating in the creation of crime also need to have the illegality of the order of the progressive elements and the element of responsibility, so in civil law countries criminal law theory, looking
forward to the possibility of theory is placed on the element of responsibility to take into account, but in our country constitutes a theory of crime, illegal sexual elements and the element of responsibility in the same level, or that is in the same plane, obstructing or negates
the responsibility of the unlawfulness of the subject and the subject does not difference.
In view of our criminal and civil law countries constitute the crime constitutes a departure from the wholesale practice of civil law countries
the possibility of application of the theory is not appropriate to expect. If, however, said China's criminal law scholars, Professor Chen Xingliang "law set different, but the realization of the purpose of law is the same thing." Look forward to the possibility of application in order to ease the contradiction between state and citizen is a national interest of the citizens of the area of personal interest in the concession of public law, "it is like to look forward to the possibility of a strong national legal
norms in the breathing space before the fragility of human nature is unending national pour into tears of sympathy for the criminal law theory ", (14) our system of criminal justice for battered women should devote to the vulnerability of human tears of sympathy? "Every person's feelings is limited, when the impact of pain to occupy the whole of human feeling, it is left to the afflicted person the only free from immediate punishment is to select the shortest shortcut." (15)
Above, from the Western Britain and other developed countries, "battered women syndrome" The second feature of "learned helplessness" pointed out: battered women, often abused and weakened the response to battered women's initiative, they become negative, passive, helpless so
that they are unlikely to leave such a violent relationship, can not change the status quo and control developments. In Western developed countries, battered women, like this, when we have thousands of such a husband the right to family rights, patriarchal and clean government
Nanduan chores such as traditional ideas of feudal country, battered women who bear the heavy yoke of the how? They just to lead a dignified life, often complain no one to turn, not a divorce mediation fails, then nowhere
else to turn can neither live nor ąýÚ can not, and thus embark on the
"violence with violence" of no return. As the assertion that their
survival is the highest law of all creatures. It is in any creature with self-preservation instinct forms. But for humans, were not only physical
life, while its spirit essential for the survival of the human spirit to survive one of the conditions that claim the rights. Rights of the Chinese people have the spirit of the living conditions and rely on the right to
protect the spirit of the living conditions. Without the right, people would go to livestock, so the Romans to the slave with the same treatment as domestic animals, which the French from the abstract point of view of full coherence. Therefore, the spirit of self-protection advocate the
rights of the obligation to give up the right to spiritual suicide. (16)
Therefore, since in our current theories do not constitute a crime, looking forward to the possibility of a suitable location, rather than to
treat battered women's The Butcher's Wife decriminalization act, then mentioned earlier, we can consider the behavior in the majority of women Butcher's Wife constitute over-defense, it should be to reduce or waive
penalties, based on the point of view and from sentencing to consider the
possibility of looking forward to the possibility of the presence or absence, as well as looking forward to the extent of, and further, where appropriate, to reduce or waive the penalty for battered women and punishment. The judiciary should give special attention to Article 37 of the Criminal Code penalties for non-criminal and the criminal law article
63, paragraph 2, discretion to reduce the use of the system.
4, "The Butcher's Wife abuse" behavior to achieve a relatively
uniform light punishment-oriented approach
Right personality mental conditions for survival. The right to claim that the spiritual personality of its own self-protection. (17) in the
case of battered women and The Butcher's Wife, The Butcher's Wife for
battered women that belong to the family of vulnerable groups, in the family has been dominant position and they are forced to become the victim from the original defendant, and to become the victim the former have a serious violation of man's own fault, punish such as they are so little Dangerousness of battered women, the state, society, victims and their children are more harm than good. It is not only a waste of limited prison resources, but also lead to more serious social family problems,
threatening the harmonious development of society, therefore, they are given light punishment for the disposition of a matter of course. This is also increasingly attracted the concern of the judiciary, a number of judicial authorities have already made a considerable humanized light
punishment judgments. But there are also part of the judicial face almost made the same case are still quite severe heavy sentence, reflecting the judicial gap is too large. (18) While any one country's criminal justice inevitably occur in different co-contracting problems, but if the sentence is too poor, not only to make people give rise to suspicion of criminal justice, fairness, and subsequently undermine the criminal justice authority. This phenomenon deserves our attention.
In this regard, I believe that our system of criminal justice should and can make a difference. China is a political, economic and cultural development is uneven across a large country, to ensure uniformity of the rule of law, universality, at the same time without losing flexibility,
richness, realism, justice can not be replaced with a legislative advantage. (19)
To this end, I propose the following ways you can try to achieve The Butcher's Wife of the battered women's light punishment of disposal of a
1. Entities guaranteed. By the Supreme People's Court set up a special judicial interpretations, and after careful investigation and study and democracy around the people's court to seek advice, based on the
behavior of battered women, The Butcher's Wife consolidated into account the above sentencing surrendered over-defense, self-defense and look
forward to the possibility of ( 20) shall be applicable; an emphasis on the continuity of domestic violence, urgency, long-term as well as the
seriousness of the strict interpretation of standards; prompted the courts of public opinion can not increase the punishment of the accused, but can be because of public opinion, and comprehensive consideration Other
factors which reduce the defendant's punishment; on this basis to develop the appropriate sentencing range: (1) suspended the application of the plot; (2) the circumstances the application of less than five years in prison; (3) five to ten years circumstances the application of fixed-term
imprisonment. If there are no battered women is particularly serious fault, in principle, the case of battered women, The Butcher's Wife penalty of not more than a decade.
2. Procedural guarantees. Taking into account the complexity of
domestic violence cases the burden of proof and degree of difficulty, the Supreme People's Procuratorate made relevant judicial interpretations can, in the proposed over-defense or self-defense to justify the defendant did
not prove (not their own reasons), the implementation of reverse or reduce the defendant the burden of proof people's standard of proof.
3. In the quasi-criminal judicial interpretations of state. If the judicial interpretation of the provisions of the above-mentioned difficult
above can also be in the "presiding judge Minutes," "The People's Republic of China Supreme People's Court Gazette" in the case, "Criminal Justice Reference" in the "case", "legal, regulations and judicial interpretation of the understanding and application of "and" people's justice "in the" judicial-mail "and other quasi-criminal judicial interpretation of these
(which are quasi-criminal judicial interpretation, though not in the strict sense of the judicial interpretation, but in fact all levels of
court in a criminal cases are still applicable) will be given the above specification, and announce the success of a number of typical cases to guide decisions throughout the criminal trial of "The Butcher's Wife Abuse" case in sentencing, so that it gradually moved toward light