Chen Hongbing: Buying abducted women and children is a serious violation of their personal dignity

Author: Chen Hongbing (Professor, Southeast University Law School, Doctoral Supervisor)

Source: Excerpt from "Research on the Interpretation and Jurisprudence of Personal Crimes" (China University of Political Science and Law Press, 2012)

Main statute links: Article 241 of the Penal Code

Whoever buys an abducted woman or child shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance.

Whoever buys an abducted woman and forcibly has sexual relations with her shall be convicted and punished in accordance with the provisions of Article 236 of this Law.

Whoever bribes an abducted woman or child, illegally deprives or restricts her personal freedom, or commits a criminal act such as harm or humiliation, shall be convicted and punished in accordance with the relevant provisions of this Law.

Whoever bribes an abducted woman or child and commits any of the criminal acts provided for in the second and third paragraphs shall be punished in accordance with the provisions on combined punishment for several crimes.

Whoever buys an abducted woman or child and then sells them out shall be convicted and punished in accordance with the provisions of Article 240 of this Law.

Whoever buys an abducted woman or child and does not abuse the child or does not obstruct his or her rescue may be given a lenient punishment;

One

Determination of legal benefits

(1) "A person who has a personality and is neither a thing nor an animal can be the subject of a sale or pledge." "The essence of the crime of trafficking in women and children is to buy and sell people as commodities, which seriously infringes on the physical and mental health of women and children, and is also an extreme violation of human dignity, which is despised by modern civilization."

The essence of the crime of buying abducted women and children is to buy people as commodities, which is a serious violation of human dignity. If it is considered that the crime also violates personal liberty and safety, then deprivation of liberty and injury after bribery should not be convicted of the crime of unlawful detention or intentional injury in addition to the crime, which obviously conflicts with the provisions of article 241, paragraph 4, of the Criminal Code on the combined punishment of several crimes.

The reason why it is believed that the legal benefits of the crime of abducting and trafficking in women and children, in addition to their personal dignity, also infringe on the personal freedom and safety of the abducted persons is obviously because the process of committing trafficking is usually accompanied by the occurrence of illegal deprivation of liberty and injury, and the statutory maximum penalty for the crime of abducting and trafficking in women and children can reach the death penalty, which is much higher than the statutory punishment for the crime of buying abducted women and children (the statutory maximum sentence is only three years of fixed-term imprisonment). In contrast, the legal benefit of the crime of buying abducted women and children can only be the human dignity of a person who cannot be sold as a commodity.

If personal dignity clearly belongs to the interests of individual law, can the victim promise to give it up, in other words, if the victim agrees to be bribed, does it prevent the establishment of the constituent elements of the crime? According to the general theory, "even if the victim agrees to be bribed, it does not affect the establishment of this crime." "However, in order to respect the individual's freedom of will, the commitment to renounce the interest of the individual should in principle be considered valid, except that such a major legal benefit as life (some consider that the promise of major health is also invalid) cannot be promised to be abandoned. In practice, there have also been cases in which the victim agrees to be bribed.

【Case 1】Tojia, the mother of the abducted seller Pan X (a Vietnamese national), helped her daughter find a mother-in-law in China. Under the introduction of A, the buyer Zhang Mouhua paid 23,000 yuan to marry Pan Back home. After Being Sent Back to His Hometown by the Police, Hou Pan expressed to the police that he was willing to be Zhang Mouhua's wife and did not agree to return to Vietnam. The court held that A's conduct constituted the crime of abducting and trafficking in women, and Zhang Mouhua constituted the crime of bribing a woman who had been abducted and trafficked. (Zhuzhou Intermediate People's Court of Hunan Province (2010) Zhuzhong Law Punishment Yi Zhong Zi No. 52 Criminal Ruling)

The author believes that the above judgment is wrong. The abducted seller has a clear understanding of the fact that he was betrayed as a wife, and agrees to marry the buyer, in fact, he gets along well with the buyer, and even takes the initiative to return to the buyer after being rescued by the police. This fully demonstrates that there is genuine and effective consent of trafficked women, and therefore the establishment of the crime of trafficking in women should be prevented, and neither the trafficker nor the buyer is guilty.

(2) The determination of the form of the crime of the crime is also related to the interests of the law. The author believes that since the legal interest of the crime is human dignity, with the completion of the bribery act, the crime ends, and thereafter it is only a continuation of the state of violation, so it belongs to the state of crime. If the offence is considered to be a continuation, it means that an accomplice to the crime of bribing abducted women and children can also be established if another person participates in the custody after the bribe;

Two

Number of sins and competition

The reason why the legislator did not stipulate the combined punishment for several crimes in the article on the crime of abducting and trafficking in women and children, but used several provisions in the article on the crime of buying and selling women and children. The reason is that the statutory punishment for this crime is low, and if a new criminal act is committed after bribery, it is difficult to achieve the proportionality of the crime and punishment; the crime is only a crime against human dignity, which belongs to the state offender, and if the new act is committed after the completion of the bribe and infringes on the new legal interests, according to the principle of legal benefit protection, several crimes should also be punished together; the crime has no result aggravating the offender or the aggravating circumstances of the crime, and if the crime is not punished together, it is obvious that the crime and punishment are not appropriate.

(1) Are the provisions of paragraphs 2, 3 and 4 a precautionary provision or a legal fiction? In the author's view, first, forcibly having sex with or obtaining a promise from an abducted girl is an offence of "such crimes" in paragraph 3, and therefore the provisions of paragraph 2 on the crime of rape are only attention to the provisions and do not exhaust all the circumstances that should be punished as rape. Second, the establishment of the crime of unlawful confinement requires unlawful deprivation of liberty, and there is no need to restrict the freedom of abducted women and children as the crime of unlawful confinement. Paragraphs 2, 3 and 4 are therefore precautionary provisions.

(2) Is the provision in paragraph 5 that convicts and punishes the crime of abducting and selling women and children after being bribed or sold, or is it a statutory formulation? If it is considered to be a matter of attention to the provisions, then if it is bought and then abducted and sold, it shall be punished as the crime of buying and selling women and children and the crime of abducting and selling women and children; if it is considered to be a legal fiction, it means that the imitation of the original punishment for several crimes shall be made into one crime.

It should be said that the provisions of paragraph 5 are followed by the provisions of paragraphs 3 and 4 on the combined punishment of several crimes, and if it is considered that several crimes should be punished together, there is no need to include a separate paragraph to stipulate it; moreover, the statutory penalty for the crime of abducting and trafficking in women and children is very heavy, and the conviction of the crime of abducting and selling women and children can also be commensurate with the crime. The provision is therefore a legal fiction. It cannot be generalized.

(3) If the perpetrator, after buying an abducted woman or child, commits rape or illegal detention against them, and then later betrays them, should it be found to be the crime of abducting and trafficking women and children, or should he be convicted of the crime of illegal detention, rape, and other crimes, and punished for several crimes at the same time? In the author's opinion, since paragraph 5 is a legal fiction, it is limited to the crime of buying and selling women and children and the crime of abducting and selling women and children as one crime, and it cannot be considered that there is no need to punish several crimes together because the crime of abducting and selling women and children includes illegal detention, rape, etc.

(4) If more than one woman or child is bribed at a time, should he be convicted of one crime or should he be punished for several crimes at the same time? The theory holds that the same number of crimes should not be punished together. However, the legal interests protected by the crime of buying abducted women and children are the exclusive legal interests of individuals and should be protected individually; moreover, the statutory maximum penalty for the crime of buying abducted women and children is only three years' imprisonment. Therefore, the author believes that if multiple women and children are bribed at one time or many times, they should be punished for several crimes according to the number of bribes.

(5) With regard to the relationship between the crime of buying and selling women and children and the crime of abducting and trafficking in women and children, there is a competitive relationship between the two crimes. When the purpose of the sale cannot be ascertained, but it can be proved that there is a fact of bribery, the crime of buying an abducted woman or child is established.

Three

Treatment of accomplices

(1) If an accomplice to the crime of buying and selling a woman or child is not established as an accomplice to the crime of buying an abducted woman or child, and if a criminal act such as unlawful detention, abuse, rape, or insult is committed, these crimes shall be punished only.

(2) In practice, there are still cases of instigating others to abduct and sell women and children and then sell them to themselves, and in addition to the crime of buying and selling women and children, does the instigator also establish an accomplice to the crime of abducting and selling women and children? The author believes that several crimes should be punished at the same time. The perpetrator undoubtedly committed two acts, which fully met the constituent elements of several crimes.

(3) Intermediary introduction between buyers and sellers is an accomplice to the crime of trafficking in women and children or an accomplice to the crime of buying and selling women and children? The author believes that in this case, the accomplice of the two crimes is established at the same time, forming an imaginary competition, and should be punished as an accomplice to the crime of abducting and selling women and children. However, if the seller is entrusted by the buyer to find the seller, if the seller originally has the intention of abducting and selling women and children, then this act does not go beyond the scope of the bribe, and only establishes an accomplice to the crime of buying the abducted women and children, but if the seller originally did not intend to abduct and sell, and only because of the introduction of the perpetrator that the intention of abduction and trafficking was generated, it should be treated as an accomplice to the crime of abducting and selling women and children.

【Case 2】 At the end of 2009, Zhao XX expressed to his relative Cui XX that he wanted to adopt a baby boy, and Cui XX contacted the defendant Lin Guocai to help. Lin Guocai was introduced by someone and learned that the fourth baby boy born to Ren XX's wife wanted to betray, Lin Guocai sent the baby boy to Zhao XX, and Zhao XX successively paid him 36,000 yuan in cash. The court held that the defendant, Lin Guocai, was guilty of bribing an abducted child. (Nanle County People's Court of Henan Province (2010) Nanxing Chuzi No. 110 Criminal Judgment,)

In this case, Cui XX was entrusted to contact Lin Guocai, who was introduced to learn that someone wanted to sell the baby, and because the seller originally had the idea of selling, The behavior of Cui XX and Lin Guocai did not go beyond the scope of bribery and did not constitute an instigator of the crime of child abduction, and the court found that Lin Guocai constituted the crime of buying and selling children.