Notice on Printing and Distributing the Supreme People's Procuratorate's 11th Batch of Guiding Cases

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Promulgation Date: 2018-11-9
Title:Notice on Printing and Distributing the Supreme People's Procuratorate's 11th Batch of Guiding Cases
[Document Number]
Expiration date: 
Promulgating Entities:Supreme People's Procuratorate
Source of text: http://news.jcrb.com/jxsw/201811/t20181118_1927902.html

To the people's procuratorates of all provinces, autonomous regions and directly governed municipalities, the Military Procuratorate of the People's Liberation Army, and the People's Procuratorate of the Xinjiang Production and Construction Corps:

经2018年10月19日最高人民检察院第十三届检察委员会第七次会议决定,现将齐某强奸、猥亵儿童案等三件指导性案例(检例第42-44号)作为第十一批指导性案例发布,供参照适用。

Supreme People's Procuratorate

2018/11/9

The Rape and Indecency to Minors Case of Qi X

(Procuratorate Case No. 42)

[Keywords]

Rape, Indecent acts involving children, Heinous Circumstances, In a public place or before the public

[Basic case details]

The defendant Qi Mo, is male, born January 1969, and was formerly the head teacher for a class at an elementary school in county X.

From the summer of 2011 through October 2012, the period in which defendant Qi X served as class leader, he repeatedly had elicit relations and indecent activity with the victims, girls A (10 yrs-old) and B (10 yrs-old), in school offices, classrooms, shower rooms, male dorms, and other places during afternoon rest times, evening self-study periods, dormitory inspections, and other such opportunities, and took girl A to his home to rape her, giving the explanation that he was taking her to the hospital. Qi X also repeatedly had indecent contact with girls C (11 yrs-old), D (11 yrs-old), E (10 yrs-old) in the girls' dorms and raped girls F (11 yrs-old) and G (11 yrs-old) once each.

[Main Ideas]

1. In cases of crimes sexually violating minors where victim statements are consistent and natural, and the description of events comports with normal capacity for memory and expression, the defendant has no evidence to support their defense, and a review of the case of evidence in light of life experience is sufficient to form a complete system of proof, the facts of the case may be established.

2. Where fornication with underage girls has circumstances for serious punishment as provided for by the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice Opinions on the Lawful Punishment and Correction of Criminal Sexual Violations of Minors" and the danger to society is in accordance with Criminal Law articles 236(2)-(4), it may be determined to be 'heinous circumstances' as provided for in item (1) of that article.

3. When the perpetrator carried out indecent acts in classrooms, group dorms and other sits, so long as there were multiple people present, even if they did not actually see it, it shall still be found that the criminal conduct was carried out in public and before the public.

[Criminal Allegations and Proof]

(1) Initiation of the prosecution and circumstances of the original judgment

On April 14, 2013, the people's procuratorate of city X initiated a prosecution of Qi X for the crimes of rape and indecency towards minors. On May 9th the municipal intermediate people's court held a closed session to hear the case. On September 23, the municipal intermediate people's court made a judgement finding that Qi X had committed rape, and sentencing him to death with a two year suspension, and lifetime deprivation of political rights; had committed indecency to minors, and sentencing him to four years and 6 months imprisonment; and decided to enforce the death sentence suspended for two years and lifetime deprivation of political rights. The defendant appealed, and after the judgment became effective it was reported to the province's High People's Court for final review.

On December 24, 2013, a the provincial High People's Court ruled to revoke the original judgment on the ground that some of the facts were unclear, remanding for new trial.

On November 13, 2014, the intermediate people's court of city X made a judgement upon retrial finding that Qi X had committed rape, and sentencing him to indeterminate detention and lifetime deprivation of political rights; had committed indecency to minors, and sentencing him to four years and 6 months imprisonment; and decided to enforce the indeterminate detention and lifetime deprivation of political rights. Qi X was dissatisfied and raised an appeal.

On January 20, 2016, the High People's Court of province X made a final judgment upon trial, finding that Qi X had committed rape and sentencing him to six years imprisonment, and one year of deprivation of political rights; had committed indecency to minors, and sentencing him to four years and 6 months imprisonment; and decided to enforce 10 years imprisonment and one year of deprivation of political rights.

(2) Initiation of trial supervision procedures and retrial to change the judgment

Province X's people's procuratorate felt the final judgment of this case was truly in error, and requested that the Supreme People's Procuratorate bring a procuratorial counter-appeal. Upon review, the Supreme People's Procuratorate found that there was error in this case's application of law, that the sentence was inappropriate and should be corrected. On March 3, 2017, the Supreme People's Procuratorate submitted a procuratorial counter-appeal to the Supreme People's Court in accordance with the trial supervision procedures.

On December 4, 2017, the Supreme People's Court heard the case in closed proceedings; the Supreme People's Procuratorate assigned personnel to appear in court, and the defender appeared to conduct a defense for the defendant.

In the court investigation phase, addressing the defendant's not admitting the crime in the previous trials, the procurator focused on whether there were conflicts between Qi X's explanations and the case evidence, as well as whether there were other evidence and leads supporting his defense, as he conducted his questioning and raised evidence, emphasizing the following questions: What relationship Qi X and had with the victims and their parents before the case, whether he had inspected the girls dorms, whether he had repeatedly called girls out of the classroom by himself, and whether he had taken girls home overnight. At court, Qi X said that he had no conflicts with the victims and their families, admitted that had inspected the girls dorms, had massaged girls' stomachs, independently called girls out of class to talk, and had a girl stay overnight at his home when taking her to see a doctor. Through in-court interrogation, the veracity and objectivity of details in victim statements were further substantiated.

In the courtroom debate phase, the procurator expressed their opinions for the appearance:

First, the facts showing defendant Qi X was guilty of rape and indecency towards minors at the previous trials were clear and the evidence was credible and sufficient. 1. Each victim and their parents had no conflicts with Qi X prior to this case. The case was promptly reported and there are no other intervening factors so false accusations can be excluded. 2. each victim statement was natural and rational, highly believable, and corroborated by classmate testimony. The victims account of details were consistent with normal memory and expressive ability, and content such as the approximate time, place, method, and number of times that Qi X committed sexual violations were essentially consistent. As a result of objective factors such as the victims tender ages and the long time since the crime occurred, it is entirely normal that there were some situations where their statements were not entirely consistent. 3. The basic facts in each victim statement were corroborated by other evidence in the case, such as records of the inspection of Qi X's bedroom, records of victim identifications of locations, pictures of the scene, diagnosis of victims' physical condition, and so forth.

Further, that Province X's High People's Court's judgment did not find that the defendant in the original case, Qi X, committed rape with heinous circumstances and that indecency to minors was in public and before the public, was an error in the application of law causing the sentence to be unusually light. 1. The 'heinous circumstances" of Qi X's fornication with underage girls. Qi X exploited his identity as a teacher to repeatedly rape 2 underage girls, stretching over a large period of time. The case occurred in a school, the harm to the victims and their families is extremely large, and has frightened other students. Qi X's conduct has several of the circumstances provided for 'heavier punishment in accordance with law' provided in article 25 of the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice Opinions on the Lawful Punishment and Correction of Criminal Sexual Violations of Minors" that taken together should be found to be 'heinous circumstances, and a punishment of 10 years or more imprisonment given. 2. Qi X's conduct in this case is indecency towards children 'in public and before the public'. Public places [in public] is a collective name that includes all public use buildings, premises, and their facilities that are available for people to engage in work, study, culture, entertainment, athletics, social interaction, visiting, touring, or satisfying life needs, with the characteristic of multiple people being able to come and go in using them. Based on the need of protecting minors, article 23 of the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice Opinions on the Lawful Punishment and Correction of Criminal Sexual Violations of Minors" include 'schools', a type of venue that persons other than teachers and students may not casually enter, as a public place. Judicial practice has already included classrooms, a type of relatively closed off premises, as public places. The girls dorms in this case are 20 person group dorms, and like classrooms are an important part of the campus, very much public and open, and that should be a public place. Article 23 of the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice Opinions on the Lawful Punishment and Correction of Criminal Sexual Violations of Minors" provides that carrying out criminal indecent acts towards minors in a public place can always be found to be before the public 'so long as there are others present, regardless of whether they actually see it." In this case, Qi X entered the girls group dorms after the lights were out, at the time the were a large number of people and there were no partitions between beds, his indecent acts were easily known to others, meeting the requirements for 'before the public'.

The grounds on which the original defendant and his defender persist in the defense that the facts are unclear and the evidence insufficient are: First, is that only direct evidence on which the conviction is based are victim statements, with Qi X denying guilt throughout, and other witness testimony is all hearsay evidence, with no physical evidence and an incomplete chain of evidence. Second is that there are contradictions between earlier and later victim statements, and they are inconsistent. Of these, one victim's first statement only spoke of indecency, but the second time also spoke of rape, this is a major contradiction between the two.

The procurator made the following arguments in response to the defense opinions: First, a few details in victim statements like the location and positions of the rapes would be difficult for those of the victims age and understanding to make up if they had not experienced it themselves. Second is that Qi X had multiple violations spanning a large period of time, the victims were young, and iit is normal for some details in the victim earlier and later statements to have differences or be vague, that is precisely consistent with these victims' memory. The basic facts and circumstances that the victims described remained stable. Although some victims did not mention rape the first time they were questioned, they explained this later, saying that at the time there were teachers from their school present and they were afraid to say it. This explanation comports with child psychology. Third is that although the victims' classmates' testimony is hearsay, it on circumstances learned of after the crime occurred and is therefore has strong probative value. Fourth is that Qi X and his defender did not provide any evidence or leads to support their defense.

One June 11, 2018 the Supreme People's Court convened a meeting of its adjudication committee to deliberate this case, the chief procurator of the Supreme People's Procuratorate attended and expressed his opinions: First, the Supreme People's Procuratorate's procuratorial counter-appeal documents found that the facts of the crime and the circumstances were objectively true. Cases of sexual violations of minors are characterized by a lack of objective and direct evidence, and defendants who are unwilling to admit guilt. In this case, the victims' parents had no prior conflict with the defendant, and the case arose naturally. The victim statement and classmate testimony comport with the case situation and child psychology, and have strong probative value. Take together with all the evidence in the case, it is sufficient to eliminate reasonable doubt, and is sufficient to determine facts showing that the defendant had committed rape and indecency towards minors. Second is that the defendant's criminal acts of indecency towards minors in the girls' dorms were indecency 'in public and before the public'. In consideration of the specific circumstances of the crime, the defendant's criminal acts of indecency towards children should be given a punishment of 10 years imprisonment or higher. Third is that the province X High People's Court second-instance trial judgment is truly in error, and the judgment shall be changed in accordance with law.

On July 27, 2018, the Supreme People's Court made a final judgment finding that the defendant Qi X had committed rape and sentencing him to indeterminate detention and lifetime deprivation of political rights, had committed indecency towards children, and sentenced him to 10 years imprisonment, and decided to enforce the indeterminate detention and lifetime deprivation of political rights.

[Guidance Significance]

(1) Correctly understanding the standards for evidence review and judgment in criminal cases of secual violations of minors.

The review of evidence in criminal cases of sexual violations against minors should be based on the physical and psychological characteristics of minors, and judged according to different standards than those for adults. Review of testimonial evidence should make an analysis in light of the entire cases' circumstances. Based on experience and common knowledge, the statements of minors are sensible and logical, and description of details comports with their ability for understand express themselves; where there is other corroborating evidence and the defendant's defenses have no evidentiary support, and there is not reason to believe it might be a false allegation in light of the parties' relationship, the minors' statements shall be adopted.

(2) Correctly apply provisions on 'heinous circumstances' in fornication with underage girls

Item (1) in the third paragraph of Criminal Law article 236 provides that where the circumstances of fornication with underage girls are 'heinous' then 10 or more years imprisonment, indeterminate detention, or the death penalty are to be given. Article 25 of the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Opinion on Punishing Crimes of Sexual Violations against Minors" provides 7 types of circumstance where rape or indecency crimes may be given harsher penalties. In practice, where rape of underage girls has circumstances calling for heavier punishment, and the danger to society is in accordance with Criminal Law articles 236(2)-(4), it may be determined to be 'heinous circumstances' as provided for in item (1) of that article. For example, item (2) of that paragraph provides that 'fornication with several underage girls" usually refers to fornicating with 3 or more underage girls. In this case, the defendant had the special status of being a teacher and fornicated with two underage girls, and did so multiple times with each of them; this harmfulness is not at all lower than fornicating with three underage girls, and may be found to meet the provisions on 'heinous circumstances'

(3) Correctly apply provisions on perpetrating rape and criminal indecent acts against minors 'in public and before the public'

The Criminal Law provides for heavier punishment of those perpetrating rape and criminal indecent acts against minors 'in public and before the public.' Article 23 of the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Opinion on Punishing Crimes of Sexual Violations against Minors" provides that perpetrating rape or criminal decency against minors in "schools, swim houses, playgrounds, and other such public places' may be found to be committing the crime 'in public and before the public." The crux of applying this provision is whether crimes were perpetrated 'before the public'. 对在规定列举之外的场所实施强奸、猥亵未成年人犯罪的,只要场所具有相对公开性,且有其他多人在场,有被他人感知可能的,就可以认定为在“公共场所当众”犯罪。 The Supreme People's Court's judgment in this case indicates: Classrooms, group dorms, public toilets, group shower areas, and so forth in schools are areas for activity by unspecified minors and perpetrating rape or criminal indecency towards minors in these places shall be found to be perpetrating crimes 'in a public place and before the public.'

[Relevant Provisions]

"Criminal Law of the People's Republic of China" articles 236, 237

"Criminal Procedure Law of the People's Republic of China" article 55

"The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Opinion on Punishing Crimes of Sexual Violations of Minors" article 2, 23, and 25.

The case of Luo X's indecent acts involving children

(Procuratorate Case No. 43)

[Keywords]

Criminal Indecency Towards Children; Online Indecency; Completion of Crimes

[Basic case details]

The defendant, Luo X, is Male, born July, 1993, and unemployed.

In January of 2017, defendant Luo used a pseudonym to add Xiao Yu, a 13 year-old girl, as a friend on the QQ software. After learning in chat that that Xiao Yu was a year two middle school student, Luo used verbal intimidation to solicit naked photos from her. After the victim refused and deleted him from her QQ friends, Luo pressured Xiao Yu through her classmate Zhou X, and again added Xiao Yu as a friend again. At the same time, Luo also invented the persona of "Li X", registering another QQ account and adding Xiao Yu as a friend. Then, Lou used the "Li" persona to intimidate Xiao Yu in QQ chat, and also continued to apply pressure through Zhou. Xiao Yu was coerced into taking 10 naked pictures of herself, and sending them to Luo via QQ software. Luo then threatened to release the photos of Xiao Yu online, demanding that they meet and get a hotel room, planning to perpetrate indecent acts. Because Xiao Yu reported the case to the public security organs, Luo was caught en route to the hotel.

[Main Ideas]

Where out of a desire to satisfy their sexual urges the perpetrator uses methods such as inducement or coercion to demand to view photos or videos of children's naked bodies or private parts, and it seriously harms the personal dignity and psychological well being of a child, it constitutes criminal indecency toward children.

[Criminal Allegations and Proof]

(1) Initiation and support of the prosecution and the circumstances of the first-instance trial

On June 5, 2017, the people's procuratorate of city X for District X initiated a prosecution of Luo X for the crime of indecency towards minors. On July 20th the people's court for that district held a closed session to hear the case in accordance with law.

In the court investigation phase, the prosecutor presented evidence on the charged crime: victim statements, witness testimony, and defendants statements, showing that Luo's acts of threatening and intimidating Xiao Yu, coercing her to take naked photos of herself; QQ chat record images, the naked photos taken by Xiaoyu, identification information, etc. showing that Luo clearly knew that Xiao Yu was a child and coerced her to take naked photos.

In the courtroom debate phase, the prosecutor expressed their opinions: So as to satisfy his sexual urges, the defendant Luo threatened and intimidated a girl of less than 14 years, coercing the victim into taking naked pictures doing the actions and poses he requested, and used the threat of publishing the nake photos to seek to perpetrate further indecency; the facts of the crime are clear, the evidence is credible and sufficient; conviction and punishment should be given for the crime of indecency towards minors.

The defender had no objections to the charged offense, but submitted the following defense opinions: First, there is insufficient evidence to determine that the defendant clearly knew the victim was not yet 14 years-old. Second, there is insufficient evidence to determine that the defendant used Xiao Yu's classmate Zhou X to pressure and threaten her to obtain naked photos. Third, the defendant's indecent conduct involving minors were not completed, and this is an inchoate offense. Fourth, after the defendant was brought into the case, he showed a good attitude in admitting the crime and may be given a lighter sentence in light of this circumstance.

The procurator made the following arguments in response to the defense opinions: First, defendant Luo stated that he learned through QQ chat that Xiao Yu was a year 2 middle school student and might be less that 14 years-old, that he had seen her pictures and videos and understood the state of her physical development, and learned of Xiao Yu's basic information from Zhou X, showing that the defendant Luo should have known that Xiao Yu was an underage girl less than 14 years old. Second is that witness Zhou X confirmed that they were coerced into helping Luo X threaten Xiao Yu in each of the two times they gave testimony, which is mutually corroborative with the victim statement and defendants statements, and at the same time, there is corroboration from the relevant chat records, sufficient to determine that defendant Luo went through Zhou X to pressure and threaten Xiao Yu. Third, is that defendant Luo's prior and subsequent types of indecent acts towards children constitute criminal indecency: 1. Luo coerced Xiao Yu to take naked photos and send them to him for viewing through the internet. Although the conduct did not directly touch the victim, it has already caused an actual and serious harm to the child's personal dignity and psychological well-being. Luo X obtaining naked pictures and viewing them should be found to be an accomplished crime. 2. Luo X threatened Xiao Yu with releasing the naked photos, demanding that they meet and get a room at a hotel, and stated that he intended to carry out further indecent acts. Because Xiao Yu reported the case, these indecent acts were not performed and this should be found to be an inchoate offense.

First-instance trial circumstances: Through trial, the court found that defendant Luo's acts of coercing the victim girl to take naked pictures of herself and he obtained the naked photos through QQ did not constitute criminal indecency towards children. Defendant Luo's threatening to disclose the photos to demand a meeting with the victim girl, and preparing to carry out indecency towards her which was prevented by the case being reported, however, constituted criminal indecency towards children and was an inchoate offense. On August 14, 2017, the people's court of district X made a first-instance trial judgment, finding that defendant Luo had committed criminal indecency (inchoate), and sentencing him to one year imprisonment.

(2) The circumstances of the procuratorial counter-appeal and final judgment

After the first-instance trial verdict was announced, the people's procuratorate for district X felt that the first-instance trial judgment was incorrect in both its determination of facts and application of law, leading to the sentence being overly light. The defendant Luo acts using the internet to coerce a child to take naked photos and viewing them constituted criminal indecency towards minors, and the offense was completed. On August 18, 2017, that procuratorate initiated a procuratorial counter-appeal in the city's intermediate people's court. Through investigation in accordance with law, the city's people's procuratorate supported the district people's procuratorate's procuratorial counter-appeal.

On November 15, 2017, the intermediate people's court for the city began to hear the case. The city's people's procuratorate appointed procurators to appear in court in support of the procuratorial counter-appeal. The procuratorate found that: 1. Regarding the nature of the case. The first-instance trial judgment found that Luo X's acts of coercing the victim to take naked photos and send them for viewing was not indecent conduct, which is an incorrect understanding of the nature of criminal indecency to children. The first-instance trial judgment's failure to assess criminal indecency towards children from its true nature of harming children's personal dignity and psychological well-being lead to the law being applied incorrectly. 2. Regarding the state of the crime in this case. In Luo's obtaining and viewing naked photos, indecent conduct has already been completed and should be found to be a completed offense. 3. Regarding the sentencing circumstances in this case. "The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Opinion on Punishing Crimes of Sexual Violations of Minors" article 25 provides that where coercive measures are used to carry out indecency towards minors, punishment is to be harsher in accordance with law. In addition to the first-instance trial judgment's mistaken application of law, it also omitted circumstances calling for heavier punishment, causing the sentence to be overly light.

Defendant Luo's defender felt that because Luo and the victim had no physical contact, the conduct should not constitute criminal indecency towards children. The procuratorate's procuratorial counter-appeal comments could not be sustained and demanded that the second-instance trial court maintain the original judgement.

The municipal people's procuratorate's procuratorial counter-appeal opinions are adopted. On December 11, 2017 the municipal intermediate people's court made a final decision finding that the defendant Luo committed criminal indecency towards children and sentencing them to 2 years imprisonment. The municipal people's procuratorate's procuratorial counter-appeal opinions were adopted. The municipal people's procuratorate's procuratorial counter-appeal opinions are adopted. On December 11, 2017 the municipal intermediate people's court made a final decision finding that the defendant Luo committed criminal indecency towards children and sentencing them to 2 years imprisonment.

[Guidance Significance]

Criminal indecency towards children refers to conduct using obscene and vulgar tactics to be indecent to children not yet 14 years old. The Criminal Law does not make a specific list of the methods by which indecency to children can be carried out, and it is necessary to make judgments and determinations based on actual conditions. In practice, so long as the perpetrator subjectively sought to satisfy sexual desires and objectively perpetrated indecenct conduct towards children, violating specific children's personal dignity and physical and psychological well-being, it shall be found to constitute criminal indecency to children.

Where in the online environment, for the purpose of satisfying sexual desire, software such as QQ or Weixin is use to entice, coerce, or otherwise demand that children take or transmit indecent pictures or videos exposing their bodies, and the perpetrator views the victims naked body or private areas, even though they never directly have contact with the victim child's body, it is a serious harm to the personal dignity and psychological well-being of the child, and has the same harmfulness to society as indecent conduct having actual contact with the child's body, and shall be found to constitute criminal indecency to children.

Procuratorates handling cases of using the internet to carry out indecent acts against children should promptly fix the electronic data showing that the perpetrator used the internet to satisfy their sexual desire employing tactics such as enticement or coercion to demand that the victim take or transmit indecent pictures or videos exposing their body for them to view. And should correctly grasp the nature and characteristics of criminal indecency to children, comprehensively gathering objective evidence showing the perpetrator's indecent conduct through the internet that did not touch the child's body has the same nature and social harm as indecent contact that directly connects with the child's body.

[Relevant Provisions]

"Criminal Law of the People's Republic of China" article 237

"The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Opinion on Punishing Crimes of Sexual Violations of Minors" article 2, 19, and 25.

The case of abuse by Yu X.

(Procuratorate Case No. 44)

[Keywords]

criminal abuse, capacity to make complaints, support in modification of custody rights

[Basic case details]

The defendant, Yu X, is Female, born May 1986, and unemployed.

Since September 2016, due to the parents divorce, the father Ding X is away at work most of the year, and the victim, Xiao Tian (female, 11 years-one) has been living with her stepmother Yu X. Yu has beaten Xiao Tian repeatedly over a long period of time due to problems in her studies and habits. On November 21, 2017, Yu X beat her using a clothes hanger and backscratcher because she was biting her nails and other problems, and Xiao Tian left home. After Xiao Tian's grandfather found her and brought her back, she was found through examination to have soft-tissue injuries on her head, limbs and other areas, so that the level of injury rose to the level of a slight injury [a defined legal standard]

[Main Ideas]

1. Where due to their tender age, minors are unable to excercise their right to make a complaint, it is 'the victim has no capacity to make a complaint' as provided for in the third paragraph of Criminal Law article 260, and should be handled as a public prosecution with the procuratorates initiating the prosecution, and they may submit a recommendation for an injunction in accordance with law.

2. Where a caretaker does not perform their obligations to raise a minor, perpetrates abuse or other serious violations of the minor's lawful rights and interests, and is not suited to continue as the caretaker, the procuratorates may support the minor or other guardians in litigating to change the caretaker with the people's court.

[Criminal Allegations and Proof]

On November 22, 2017, it was revealed online that Xiao Tian, an 11 year-old girl, had been abused by her mother, attracting public attention. After personnel at the juvenile department of the people's procuratorate for District X in City X became aware of this, they questioned and psychological counseled the victim Xiao Tian in conjunction with the public security organs and a psychological consultation establishment. Through investigation it was discovered that the stepmother Yu X had repeatedly beaten Xiao Tian over a long period of time, which was suspected criminal abuse. The victim in this case is a minor, and has no capacity to make a complaint to the people's court, and also has no relatives to do so on her behalf. The procuratorate recommended that the public security organs open an investigation of Yu X on suspicion of criminal abuse. On November 24, the public security organs made a decision to open an investigation. Thereafter, the criminal suspect Yu turned herself in. On April 26, 2018, the public security organs transferred the case to the procuratorate for review for prosecution on suspicion of criminal abuse.

In the review for prosecution phase, the people's procuratorate for the district lawfully interrogated the criminal suspect, heard the opinions of the victim and her legally-designated representative, and verified the case facts and evidence. Through review, the procuratorate found that the criminal suspect's statements and the victim statements were mutually corroborative and confirmed by testimony of other members of the household, sufficient to show that Yu had beaten the victim repeatedly over a long period of time causing slight wounds to the victim, which is heinous circumstances and this conduct is suspected criminal abuse.

On May 16, 2018, the district's people's procuratorate initiated a prosecution against Yu for criminal abuse. On May 31, the people's court for that district applied the simplified procedures to try the case.

During the court investigation, the prosecutor read out the indictment, alleging that the defendant Yu had abused a family member with heinous circumstances, and should be pursued for criminal liability for the crime of abuse. The defendant had no objections to the alleged facts or charges in the indictment.

In the courtroom debate phase, the prosecutor expressed their opinions: Defendant Yu abused a minor family member with heinous circumstances; conduct that violates article 260, paragraph 1 of the "Criminal Law of the People's Republic of China"; the facts of the crime are clear, the evidence credible and sufficient, and criminal liability should be pursued for the crime of criminal abuse. The defendant proactively turned herself in and truthfully confessed her criminal conduct, which is voluntary surrender and can mitigate or commute the punishment. Taking together the statutory and discretionary sentencing circumstances, it was recommended that a sentence of between 6-8 months imprisonment be given. Considering that the defendant might be given a suspended sentence, the prosecutor proposed to the court that an injunction should be applied, prohibiting the defendant from perpetrating further domestic violence of the victim.

In the final statement phase, Yu X stated that she had no objections to the procuratorate's factual allegations and evidence, and admitted guilt in court.

Through trial, the court found that charges alleged by the prosecution were supported, that the evidence presented was mutually corroborative, and the sentencing recommendation was appropriate, and adopted them. The first-instance trial judgment was made at court, finding that defendant Yu had committed criminal abuse, and sentencing her to six months imprisonment subject to a one-year suspension. And prohibited the defendant from perpetrating further domestic violence against the victim. After the first-instance trial, the defendant did not appeal, and the judgment has taken effect.

【Support in Initiating Litigation for Modification of Custody Rights】

The people's procuratorate of District X in City X discovered while handling this case that in September 2015, Xiao Tian's birth parents had agreed to divorce due to incompatibility and agreed that she would live with her father. Xiao Tian's father, Ding X, remarried in December 2015. Ding was away on work for long periods and had no ability to care for the victim himself. Procuratorate personnel solicited the opinions of Xiao Tian's birth mother, Wu X, and she was willing to care for Xiao Tian. The procuratorate personnel supported Wu in initiating a change of custody rights with people's court. On January 15, 2018, Xiao Tian's birth mother, Wu X, submitted a suit for change of custody to the people's court for district X in City X. Through mediation, the court ruled to modify custody rights regarding Xiao Tian, giving custody to the birth mother, Wu, and calling for the birth father Ding to give alimony sufficient for her to live independently.

[Guidance Significance]

Article 260 of the "Criminal Law of the People's Republic of China" provides that abuse of a family member were the circumstances are heinous, is handled only upon complaint, except where the victim does not have the capacity to make a complaint, or is unable to make a complaint due to coercion or intimidation. In cases of criminal abuse of minors, the minors tend to lack capacity to make complaints, and should be handled as public prosecutions with the procuratorates initiating the public prosecution and preserving the minors' lawful rights.

Article 7 of "The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Provisions on Issues Related to Applying Injunctions for Criminals Given Controlled Release or Suspended Sentences (provisional)" provides that when people's procuratorate raise litigation, the may recommend prohibiting defendants given suspended sentences from engaging in certain activities, entering certain areas or premises, or having contact with certain persons. In cases of minors suffering family member abuse, in consideration of the circumstances of the crime, the people's procuratorates may submit focussed recommendations for injunctions to the people's courts when submitting sentencing recommendations, to prohibit the defendant from conducting further domestic violence of the victim, lawfully safeguarding the minors' lawful rights and interests, and supervising the defendants' earnest reformation during the suspended sentence probation period.

After a divorce, where the party with custody does not perform their custodial duties towards the minor, abuses the minor or perpetrates other acts violating their lawful rights and interests, and is not fit to continue as their caretaker, the procuratorates may, on the basis of article 15 of the "Civil Procedure Law of the People's Republic of China", support the minor or other guardians in initiating a change of custody suit in the people's courts, to truly preserve the lawful rights and interests of the minors.

[Relevant Provisions]

"Criminal Law of the People's Republic of China" articles 72, 260

"People's Republic of China Law on Protection of Minors" Article 50

"Civil Procedure Law of the People's Republic of China" article 15

"Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Civil Affairs' Opinion on Several Issues in Handling Guardians' Violations of the Rights and Interests of Minors in Accordance with Law" Articles 2, 14

"The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Opinion on Handling Criminal Cases of Domestic Violence" Articles 9, 17

"The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's Provisions on Issues Related to Applying Injunctions for Criminals Given Controlled Release or Suspended Sentences" Article 7

 

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