Excellent Paper Selection: Improving the Protection Mechanism of Children's Rights and Interests in China

The child abuse incident is not only the social status quo of our country, but also the cancer that plagues the whole world. In the face of such frequent vicious incidents and the media's one-sided reports, we should deeply analyze the reasons behind child abuse, combine with the actual situation of our country, and establish a comprehensive protection system from the perspectives of legislation, justice, administration and society as soon as possible, so as to truly achieve the effect of law-based, law-based and law-enforcement.

The effect of (I) special child protection law is not prominent
 

There are many laws and regulations on the protection of children's rights and obligations in China, but they are relatively scattered in the Constitution, the law on the protection of minors, the law on compulsory education, the marriage law and other relevant laws. For example, the "Law on the Protection of Minors" stipulates that "the faculty and staff of schools, kindergartens, and nurseries shall respect the personal dignity of minors, and shall not impose corporal punishment, disguised corporal punishment or other acts that insult personal dignity on minors"; The second paragraph of Article 37 of the "the People's Republic of China Teachers Law" stipulates that "corporal punishment of students will not be changed after education"; the third paragraph "(III) bad conduct, insulting students, bad influence. If a teacher has one of the circumstances listed in items (II) and (III) of the preceding paragraph, and the circumstances are serious enough to constitute a crime, he shall be investigated for criminal responsibility according to law." From the above-mentioned legislation, there are everywhere the principled words such as "prohibition", "must not" and "should". Once an incident occurs, it is impossible to fundamentally protect the rights of children only by relying on such slogan-like laws. There are many laws on child protection in our country, but they lack systematicness and specialization, and the content is generally hollow and general, giving people an ambiguous feeling. In the protection of the main body, there is no specific to the department organization, let alone the system of supporting sanctions. When the incident was widely reported by the media, the so-called reporting system and the so-called express provisions were all in vain. There were still no supporting measures for pre-prevention. In the process of handling, the division of labor was clear and the responsibilities were detailed. In the end, the perpetrators were given due punishment, and the implementation of the law was able to effectively avoid the satisfactory results of such child abuse.
 

Lack of the Status of (II) Criminal Legislation to Protect Children
 

Looking at our existing criminal legislation, there is no specific provision for child abuse. The Wenling teacher child abuse case was finally revoked because the suspect did not constitute the crime of provoking trouble, and the case was ended with a 15-day administrative detention. Looking back at the kindergarten teacher's two-year history of child abuse, we can't help but feel that the sentence is too light to deter and educate potential criminal suspects. However, according to the principle of legally prescribed punishment for a crime, it is really difficult to find a matching criminal law provision.

None of the inferences can accurately identify the perpetrator's child abuse. First of all, it is inappropriate for child abuse to be attributed to the crime of provoking trouble. From the legal meaning of protection, the crime of provoking quarrels protects public and social order, and its behavior is to beat others at will; chase, intercept, abuse others, or force, arbitrarily damage, or occupy public and private property. The above is completely different from the physical and mental health of children violated by child abuse, and it cannot be compared with it. Secondly, it is also difficult to identify child abuse as a crime of intentional injury. Because the establishment of the crime of intentional injury requires that it must result in more than minor injuries, if it is only minor injuries, it only needs to be dealt with by the Public Security Administration Punishment Law. Moreover, the crime of intentional injury only mentions physical health, does not involve psychological aspects, and cannot cover the mental health of children damaged by child abuse. Finally, child abuse does not constitute a crime of abuse. Because the criminal law of our country explicitly stipulates that the crime of abuse is applicable to family members, this excludes the abuse of children by educational institutions or other non-family members.

(III) education teacher supervision is not in place
 

Kindergarten is a happy world for the healthy development of preschool children's body, intelligence and mood. However, under the examination-oriented education system in China, preschool education has become more and more utilitarian. In an international metropolis like Shanghai, the education of many kindergartens is required to reach the level of primary school, and there is even a scene of "difficult to study" in which parents do not want their children to lose at the starting line. to a certain extent, it has also caused a hotbed of corporal punishment in kindergartens.

In addition to the increasingly unbalanced status of kindergartens, the lack of teachers is also a major criticism that affects the quality of preschool education. The first is the insufficient investment in preschool education. According to statistics, preschool education funds only account for 1.3 of education investment, which is far lower than other countries in the world. Public kindergartens enter the "high threshold", making the rapid development of private kindergartens. Secondly, with the development of urbanization, the contradiction between the demand and supply of kindergarten teachers in China has become increasingly prominent. According to data from the Ministry of Education, there is currently a shortage of 800000 preschool education teachers across the country, of which there is a shortage of about 560000 in rural areas. In this way, the preschool education gap is as high as nearly 40%. The work of kindergarten teachers generally has the characteristics of low wages and relatively hard work. Many private kindergartens also have low standards for teacher selection. This has caused many teachers to work without a license, and it is more difficult to ensure the quality of teaching. Finally, it is very important that the supervision of kindergartens is unfavorable. The kindergarten failed to establish a supporting assessment and supervision system, and regularly conducted comprehensive inspections on teachers' teaching quality, psychological quality and teacher ethics performance.

Common characteristics of (I) child abuse

Throughout the recent incidents of child abuse in China, we can see that there are some commonalities in child abuse cases. First of all, from the perspective of the subject of violence, most of the incidents occur in kindergartens and other early childhood education institutions. Violence may be committed by kindergarten teachers themselves or by abetting other children. From the perspective of the victims, the victims are often young children who do not have the ability to identify and lack the ability to protect themselves. Most of them are naughty and disturb the classroom order. Affected by the traditional educational concept of "filial son under the stick", many parents choose to turn a blind eye, which encourages teachers' punishment from the side, thus causing irreparable consequences. Secondly, from the perspective of the degree of harm caused by the perpetrator, the consequences generally do not meet the starting standards stipulated by the existing law, such as the level of minor injuries in the crime of intentional injury. However, from the perspective of protecting children's physical and mental health development, the long-term past disguised corporal punishment and abuse not only fail to achieve the wish of looking forward to the success of children, but will leave the wrong impression that this kind of behavior is encouraged in the process of children's thinking development, laying hidden dangers for juvenile delinquency. Finally, the motives of the perpetrators are mostly punishment, pleasure, venting their dissatisfaction or release pressure, so as to achieve their own pursuit of stimulation.

Social Harmfulness of (II) Child Abuse

To consider whether an act should be restricted by the criminal law, we must first see whether it has a considerable degree of social harm, that is, from the essential characteristics of the harmful act, it does cause irreparable social consequences and damages the society to a certain extent. The rights of citizens. On the other hand, it is also necessary to look at the last resort and the strongest force of criminal law, because criminal law has a certain negative value, and the principle of pre-legal protection must be exhausted before criminal law can be used to protect it. Based on this, the author thinks that it is necessary to put child abuse into punishment. First, child abuse has reached the level of damage required by general criminal law. From the perspective of the legal meaning of protection, child abuse is close to the manifestations of intentional injury and abuse. The crime of intentional injury requires minor injuries, while the crime of abuse requires "bad circumstances". Although a few recent child abuse incidents have not reached The standard of minor injuries is in line with the plot of "beating, starving, and insulting" in the crime of abuse, and it is frequent. From the perspective of the special groups protected, whether it is mental torture or physical torture, it can be concluded that child abuse is necessary to be punished. Of course, we will not bring all the perpetrators of child abuse into the control of the criminal law, but according to the principle of adaptation of crime, responsibility and punishment, we will hand over the behavior of "obviously minor, not harmful, and not considered criminal" to other legal regulations to protect children, so as to build a protection system for children in our country as soon as possible.

Under the background of frequent child abuse incidents in our country, the author thinks that it is necessary to raise child abuse to the height of criminal law. While preventing crimes through the deterrence of criminal law, it also makes those insane perpetrators get the punishment they deserve.

(I) to amend the provisions of "crime of abuse" in China as soon as possible

Throughout the criminal law of our country, the crime of abuse is undoubtedly the closest to the performance of child abuse, but due to the restriction of "identity", child abuse is excluded from the criminal law system. The author thinks that the current "crime of abuse" has several defects: 1. It has not reached the legal effect at the beginning of the design. The crime of abuse is a crime of personal accusation in our country. Except for serious injury and death, the victim needs to file a complaint before the court can accept it. Since ancient times, China has been deeply influenced by Confucian classics. From Confucius' principle of "father is the hidden of son, son is the hidden of father" to the principle of mutual concealment of relatives in the Tang Dynasty, people generally do not want to publicize family ugliness, which creates a hotbed for domestic violence. Vulnerable groups such as the elderly, women and children who suffer from domestic violence and cold have become victims. On the one hand, they are concerned about family affection, and on the other hand, they have difficulties in collecting evidence. 2. Limit the subject to family members. Such provisions make behaviors such as elder abuse in nursing homes not protected by law, and also condone the harm of family members. With the development of social interpersonal relationship, some people who live together for a long time do not have marriage and family relationship. Therefore, the author thinks that the applicable subject of the crime of abuse should be expanded. 3. The sentence for the crime of abuse is too light. The lowest sentencing range for the crime of intentional injury is "intentional injury to another person's body shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance", while the crime of abuse between relatives is generally only two years, and even "causing serious injury to the victim." such serious consequences as death "are only" fixed-term imprisonment of not less than two years but not more than seven years ". What is more chilling than being poisoned by relatives, and what can exchange social conscience more than severely punishing these violent perpetrators. To a certain extent, the punishment is increased, just to better protect the victims.

Based on the legislative defects of the "crime of abuse", the author suggests that the scope of the subject of the crime of abuse should be expanded, and the principle of "telling to deal with" should be broken through when it comes to the abuse of children, the elderly or the disabled, so as to truly achieve the purpose of protecting the vulnerable.

(II) Perfecting the Special Legislation for Children and Clarifying the Subject of Responsibility

Most of the existing child protection laws in China are declarative and lack of specific operational norms. In this regard, we can learn from the legislation of the United States and Hong Kong. Among the relevant laws on the prevention and control of child abuse in the United States, the most characteristic one is the "mandatory reporting system". In addition to the increasing scope of whistleblowers, the content of the report also keeps pace with the times. Most states require reporting when there is "reason to believe" or "reason to suspect" that a child has been abused or neglected. It also provides for persons or organizations responsible for children to report abuse and neglect. For those who do not report, the law also provides for the corresponding punishment. China also has a good legal environment, should promote this protection mechanism in the whole society. Especially for law enforcement personnel, should be clear responsibility clear punishment consequences. Hong Kong formally established the Society for the Prevention of Child Abuse in 1980. In 1983, the Social Welfare Department of the Hong Kong Government established a special child protection service group. In 1995, the Hong Kong Police Force established the Child Abuse Policy Group and Investigation Group. From special prevention in advance to special case-handling personnel and investigators, the practice of Hong Kong legislation is worth learning from.

(III) should strengthen government functions

From the previous analysis of the defects of China's child protection mechanism, we can see that the government's financial support in preschool education is far from effective, and the government should strengthen the review of kindergarten construction and kindergarten teacher qualification education. As a special group of social protection, children need the attention and investment of family, society and government. The government should play a greater guiding role. In addition to protecting the basic rights of children, it should establish a special child protection agency, which should be refined in terms of prevention, education, protection, and punishment. For those left behind children, the government should strengthen capital investment, ensure the healthy development of children's physiology and psychology, ensure their nine-year compulsory education, provide financial assistance to children from poor families, and do not let poverty hinder their development.

(This article won the first prize in the comprehensive category of excellent papers in Shandong Province in 2014)