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