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Loophole of criminal law thinking of Wenling fine child abuse case

Author: Wang
Tutor: DengZiBin
School: Graduate School of the Chinese Academy of Social Sciences
Course: Legal
Keywords: Criminal Law’s Loophole Interpretation of Criminal Law CriminalLegislation the Crime of Abuse
CLC: D924.34
Type: Master's thesis
Year: 2013
Downloads: 204
Quote: 0
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Abstract


Recently,the news of child abuse has been exposed frequently. Among them, thecase which kindergarten teacher abused children in Wen Ling has extremely attractedthe public attention. What the criminal law scholars focus on is how to regulate “childabuse” with criminal law. This paper goes further on this issue. As an entry point intofeasibility analysis of the punishment of “the crime of child abuse”, the authoremphasizes how to fill the criminal law’s loopholes, and to increase the choices ofdifferent models. The appearance of statutory law is undoubtedly creative in the legalhistory. The authority of the ruler is no longer secret torture. On the contrary, they needto rely on legal clarity and predictability. However, the law focuses on the past. With theestablishment of the grid which is weaved by legal provisions, simultaneously legalloophole is brought about. As the most stringent legal department, criminal law has theresponsibility to fill its own loopholes.This article is divided into four chapters.The first chapter proposes theclassification of loopholes of the criminal law generally. There are three typicalsituations which are “should be contained but not”,“should not be contained butcontained”, and “internal defects caused by vague and abstract language”. The analysisof the above three situations and proposal corresponding solutions is the focal point ofthis essay. The second chapter introduces the path modes of filling criminal law’sloopholes. It is the difference in how to fill the loopholes that depart the interpretationand legislation of criminal law. With the development of the theory of criminal law, it isundesirable to separate them thoroughly. In contrast, the application of differentmethods is more scientific when dealing with specific cases. The third chapteremphasizes the rational analysis of interpretation of criminal law. Mainly it researchesthe fundamental value and principle of legality. Based on discussing the pros and consof the formalistic interpretation theory and the substantial interpretation theory, theauthor holds the viewpoint that choosing the better one when dealing with specific cases.The forth chapter is mainly about feasibility analysis of" crime of child abuse" whichshould be punished by criminal law. Enhancing awareness of public law and the socialchange have brought social conditions to punish child abuse. Moreover Britain, Germany and other international experience are practical demonstration. Consideringour current reality, the author raises expanding the scope of criminal subject ruled by thecrime of abuse is a plausible method, which can also combines the protection of therights and interests of minors and the maintenance certainty requirements of criminallaw.The significance of this study is to build a multi-level and dimensional modelsfilling the criminal law’s loopholes, and to use flexible methods dealing with differentcases. Furthermore, using the textual structure that “combine the law and the case” isnot only to demonstrate the theoretical study of criminal law practically, but alsomanifest the the real value of criminal law.

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CLC: > Political, legal > Legal > Chinese law > Criminal law > Sub-rule > Violation of civil rights and democratic rights of crime
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