Views ｜ Wang Zhixiang, a professor at Beijing Normal University, talks about being bought by crime of trafficking in women and children： the limitation of prosecution should be extended and the acquit
Red Star Journalist | Luo Danni Photographer | Song Yuze
Edit | Pan Li
On the evening of April 6, Yulin, Shaanxi Province released the investigation results of the "light rain" incident in Jiaxian County. According to the joint investigation team of Yulin City, after investigation, the relevant post of "Xiaoyu" in Jiaxian County, Shaanxi Province appeared on the Internet, and its household registration name was Tao Moxia, suffering from mental illness. After being lost for the second time, she was taken back to her home by Wu Mou Wa and Wu Mou Xia in September 2010, and then sold to Li Momin for 8,000 yuan. On March 10th, 2022, the public security organs criminally detained Wu Mou Wa, Wu Mou Xia and other suspects suspected of abducting and selling women, and the case is under investigation. Li Moumin is suspected of buying a trafficked woman, and the statute of limitations has expired.
The topic of trafficking in women has received renewed attention. Apart from whether the crime of crime of trafficking in women and children should be changed and the penalty for buying abducted women should be increased, the Red Star journalist also noticed that in judicial practice, few people who bought abducted women and children were investigated for legal responsibility. Therefore, the Red Star journalist interviewed Wang Zhixiang, director of the Institute of Foreign Criminal Law and Comparative Criminal Law of Beijing Normal University, to interpret the original intention and change of the crime of abducting and selling women and children, and the social background behind it.
Regarding the failure to investigate the legal responsibility of the buyer, Wang Zhixiang said that the limitation of prosecution was involved, because the maximum prosecution period of three years’ imprisonment was only five years. "In judicial practice, once a child is bought, many people often buy it for 20 or 20 years, or even raise an adult. In this case, criminal responsibility cannot be investigated." Therefore, from this perspective, Wang Zhixiang believes that it is necessary to increase the statutory penalty for buying and selling crime of trafficking in women and children. "This will extend the limitation of prosecution, strengthen the investigation of buying and selling abducted women and children, and reduce the phenomenon of acquittal."
▲ Wang Zhixiang
one
Legislative evolution
From the Crime of Human Trafficking to crime of trafficking in women and children
Red Star News: crime of trafficking in women and children originated from the crime of human trafficking. What was the social background of the crime of human trafficking?
Wang Zhixiang:The Criminal Law enacted in 1979 did not explicitly stipulate the crime of "buying abducted women and children", but stipulated the crime of human trafficking. Article 141 of the Criminal Law of 1979 stipulates: "Whoever abducts and sells people shall be sentenced to fixed-term imprisonment of not more than five years; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years. "
Judging from the situation in our country, the crime of human trafficking was established in the criminal law in 1979. In the early days of the founding of New China, the crime of human trafficking was not a prominent problem before the reform and opening up because of the strict control of population flow and the limited level of economic development. After the reform and opening up, with the improvement of the level of economic development and the frequent population movement, the crime of human trafficking is at a relatively high level.
Red Star News: In 1983, the maximum statutory penalty for the crime of human trafficking was raised to death. What was the consideration?
Wang Zhixiang:After 1980s, China society entered the period of reform and opening-up. With the arrival of reform and opening-up, the total amount of crimes was in a state of growth. So in 1983, the National People’s Congress Standing Committee (NPCSC) passed the Decision on Severely Punishing Criminals who Seriously Endangered Social Security. In the decision, seven types of crimes, including the crime of human trafficking, were raised to the death penalty. Obviously, the legislative intention is to strengthen the severe crackdown on these seven types of crimes. It should be said that in the short term, it has had an immediate effect, and the crime of human trafficking has been curbed to a certain extent.
Red Star News: In 1991, the National People’s Congress Standing Committee (NPCSC) adopted the "Decision on Severely Punishing Criminals of Abducting and Kidnapping Women and Children" and added crime of trafficking in women and children. The coexistence of crime of trafficking in women and children and the crime of human trafficking in criminal law began to take shape. How has this changed in judicial practice?
Wang Zhixiang:This legislation takes into account that in judicial practice, as far as the crime of trafficking in human beings is concerned, the main targets of trafficking in human beings are women and children. In order to emphasize the crackdown on trafficking in women and children, it is said that the crime of trafficking in women and children is criminalized through the single criminal law, which has indeed formed a pattern in which the crime of trafficking in human beings coexists with crime of trafficking in women and children, resulting in the fact that in judicial practice, the act of trafficking in women and children should be considered as constituting crime of trafficking in women and children according to the provisions of the single criminal law. The act of abducting and selling people other than women and children should be regarded as the crime of abducting and selling people. In this case, in fact, the crime of human trafficking in criminal law has played a role in plugging the leak.
▲ According to vision china
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Legislative loopholes
Omitting the protection of personal dignity of men who have reached the age of 14
Red Star News: In the Criminal Law of 1997, men who have reached the age of 14 are excluded from the scope of the crime of trafficking. Is the personal dignity of men who have reached the age of 14 different from that of women and children?
Wang Zhixiang:In 1997, the Criminal Law adopted a simple and consistent approach in establishing the crime of abduction and trafficking, specifically, the crime of trafficking in women and children stipulated in the Decision on Severely Punishing Criminals who Abduct and Abduct Women and Children, which I just mentioned, was transplanted into the Criminal Law of 1997, which actually omitted the protection of the personal dignity of men over 14 years old except women and children.
However, from the perspective of criminal law theory, personal dignity is shared by all the population. Therefore, in 1997, when crime of trafficking in women and children was established, the Criminal Law decriminalized the act of abducting and selling men who have reached the age of 14. This obviously doesn’t make sense in theory, which actually belongs to a loophole in legislation. For example, in the case of the black brick kiln in Shanxi, they abducted mentally retarded men to work as coolies in the black brick kiln, so they can only punish such behavior according to the crime of forced labor.
Red Star News: In your monograph, it is suggested that crime of trafficking in women and children’s expression be adjusted to the crime of trafficking in women and children. Why do you advocate "trafficking" instead of "trafficking"?
Wang Zhixiang:In fact, article 240th of the Criminal Law is involved here, and the relationship between the six ways of trafficking is specifically abduction, kidnapping, buying, selling, picking up and transferring. If this charge is described as crime of trafficking in women and children, on the one hand, it will easily lead to a misunderstanding that in judicial practice, only abduction can constitute crime of trafficking in women and children, but in a large number of cases, there is no such act as abduction. For example, parents betray their own children. On the other hand, people may think that the establishment of crime of trafficking in women and children should be against the will of women and children, but in fact, in judicial practice, even if women and children voluntarily agree to be sold, it will not affect the establishment of crime of trafficking in women and children.
Here, it is related to what crime of trafficking in women and children really protects. Many people say that it protects the personal freedom of women and children, but personal freedom can be promised to be sold. Once we understand this crime from the perspective of personal freedom, it will be very troublesome. The crime of abducting and selling women and children is actually not treating people as adults, materializing them and commercializing them. It constitutes an infringement on human dignity and should be recognized at such a high level.
▲ Large-screen public service advertisement of "Strictly crack down on trafficking in women and children and protect the legitimate rights and interests of women and children". According to vision china
three
Legislative characteristics
Most of the bribery acts have passed the limitation of prosecution and cannot be convicted.
Red Star News: Whoever buys crime of trafficking in women and children is sentenced to fixed-term imprisonment of not more than three years, criminal detention or control. In your monograph, you mentioned that this crime presents a light punishment policy. What is the consideration when legislating?
Wang Zhixiang:For bribing crime of trafficking in women and children, the criminal policy of light punishment is generally consistent with the degree of social harm of the crime. Although buying and selling generally correspond to each other, there is not necessarily an inevitable relationship between the occurrence of trafficking and buying, and the focus of prevention and punishment of trafficking crimes should still be on eliminating the causes of crimes, that is, cracking down on traffickers. Moreover, compared with the diversity of selling, buying is much simpler in form. All these determine that the penalty allocation of buying behavior cannot be equal to that of selling behavior, and only a relatively mild penalty can be imposed on it.
Red Star News: In recent years, many families have found their children, but in judicial practice, few families who bought abducted children have been investigated for legal responsibility. Why?
Wang Zhixiang:This involves the limitation of prosecution, because the maximum prosecution period of three years’ imprisonment is only five years. In judicial practice, once a child is bought, it is often bought for 20 or 20 years, or even brought up as an adult, and it is impossible to pursue criminal responsibility. Therefore, from this perspective, it is necessary to increase the statutory penalty for bribing crime of trafficking in women and children, because once five years have passed, the state will have no right of prosecution in principle.
If the statutory penalty for buying abducted women and children is appropriately raised, for example, the maximum statutory penalty of 3 years’ imprisonment is raised to 7 years or even 10 years’ imprisonment, so that the limitation of prosecution for buying abducted women and children in crime of trafficking in women and children can be increased from 5 years to 10 years or even 15 years, thus greatly strengthening the investigation of buying abducted women and children in crime of trafficking in women and children and reducing the phenomenon of decriminalization of buying abducted women and children in judicial practice.
Red Star News: In your research, is there a high proportion of trafficked women who voluntarily stay and continue to maintain family relationships with their buyers?
Wang Zhixiang:This ratio is not very low, especially when a woman is married locally and has children, it is very difficult for her to leave the bought family, so a very strange phenomenon has happened, and she even agrees with the behavior of being bought, which is called Stockholm syndrome. If the crime of abducting and selling women and children is not cracked down in time, it will often create a very big social problem.
Therefore, the staff of marriage registration may need to have certain reporting obligations. As far as the governance of the crime of abducting and selling women and children is concerned, it is actually a systematic project, which requires efforts from various aspects. Article 416th (Provisions) of the Criminal Law specifically stipulates two crimes of dereliction of duty for the staff of state organs who are responsible for rescuing, one is the crime of not rescuing abducted women and children, and the other is the crime of obstructing the rescue of abducted women and children. Of course, from the perspective of judicial practice, these two crimes are relatively narrow. From the point of view of legislative provisions, the provisions of the staff of state organs who are responsible for rescue are vague. In judicial practice, the scope of who belongs to the staff of state organs who are responsible for rescue is not particularly clear, which leads to a phenomenon that it is difficult to operate when applying the two provisions in judicial practice.
▲ According to vision china
four
Legal punishment dispute
"The same crime of buying and selling" is difficult to realize in criminal law.
Red Star News: Some time ago, many legal experts and deputies to the National People’s Congress discussed the sentencing of bribing crime of trafficking in women and children. What views did you notice?
Wang Zhixiang:Professor Luo Xiang put forward "the same punishment for buying and selling", which I think is difficult to realize in criminal law. The crime of buying and selling abducted women and children in China’s criminal judicial practice is very different from that in many countries in the world. The crime of buying and selling abducted women and children in many countries in the world is for the purpose of exploitation, such as buying and selling slaves or buying and selling rape. However, the crime of buying abducted women and children stipulated in China’s criminal law, from the perspective of judicial practice, all these people establish marriage relations with abducted women and children relations with abducted children for the purpose of establishing families. The harmfulness of the two should be treated differently, and the legal punishment of the two can’t be kept at the same level, otherwise the focus of the attack can’t be highlighted in practice.
In addition, Professor Luo Xiang’s comparison of this crime with the illegal acquisition of wild animals has aroused widespread discussion in the society. Of course, some people have also pointed out that it is not particularly appropriate to simply compare individuals with animals, and the starting point of legislation for people and animals is still quite different. However, Professor Luo Xiang’s view has forced us to face up to a problem. The criminal law of China itself will lead people to draw a conclusion that people are not as good as animals. I think this phenomenon really deserves attention.
There are also some scholars who believe that the legal punishment of buying women and children should be maintained in crime of trafficking in women and children, and that some serious crimes will occur after buying women and children. For example, illegal detention, rape, etc., a crime like rape, how can a woman’s sexual behavior be voluntary after she is bought, but this is only a presumption in concept. In judicial practice, it needs evidence to support it. Buying is generally convicted by crime of trafficking in women and children alone. Therefore, from this point of view, it is also necessary to increase the statutory punishment for the crime of buying abducted women and children, so as to avoid the possibility of subsequent felonies to the greatest extent.
Red Star News: Do you think there is anything left to be improved in crime of trafficking in women and children’s legislation?
Wang Zhixiang:I think from the legislative point of view, it can be summarized as one liter and one drop. Specifically, the legal punishment for buying abducted women and children should be raised to 6, 7 or even 10 years. This is due to its own legitimacy, that is to say, the proportion of the marriageable population is too large, which explains why many people even think that there is nothing wrong with brides in vietnamese brides and Myanmar. In fact, behind this crime problem, there are very complicated social backgrounds and social reasons, which cannot be borne by the criminals themselves.
On the other hand, I think that the statutory minimum penalty for abducting and selling women and children is higher than five years’ imprisonment. In judicial practice, biological parents also sell their own children. This kind of behavior often happens for a reason, for example, they can’t support their children because they can’t live any longer. I mentioned in the course of my research that in this case, the statutory penalty range of less than five years’ imprisonment should be stipulated in the criminal law, so that this kind of behavior can be properly evaluated by criminal law.
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