Beijing, October 10 (Zhongxin.com) -- Since the news of Shanghai's 24-year-old girl's beach disappearance was announced, it has been touching the hearts of the entire network. Half a month later, on October 4, Shanghai Pudong police issued a police report saying that the body of a girl was found in a beach in Zhenhai District, Ningbo City, and the biometric test of the girl's body was extracted by a forensic doctor and compared with the family, confirming that the missing girl Huang Moumou in Pudong was confirmed.
Shanghai Pudong police issued a police report
Although condemning parents is no longer helpful, the incident has brought the question of whether guardians are responsible for the death of children due to negligence" once again in the spotlight, and has also generated two distinct voices. One claimed that the minor's parents and guardians had a supervisory obligation for their safety, calling for the creation of the crime of "neglect of child care"; Another believes that even if convicted of a crime, it is not enough for most parents to have a more preventive effect, and will cause secondary harm.
Why do tragedies of child casualties caused by parental negligence occur? Who is responsible for the fallen life?
"Fatal negligence" was accused by public opinion
Why do tragedies keep happening?
Although there are no clear statistics, there are many reports of unfortunate incidents of children in traffic accidents, falls, death due to high temperature suffocation in locked cars, and drowning deaths due to parental negligence.
In 2017, a father in Tianjin held his two children to watch the night scene at the railing of a shopping mall, and the child fell to his death; In 2, 2018-year-old twins drowned within minutes of their mother swiping their mobile phone while playing on a beach in Qingdao; In the mid-autumn festival of 8, a 2021-year-old girl in Shenzhen was forgotten by her parents and suffocated in a car... In October of this year, the tragedy played out again when the father returned to pick up his mobile phone and left the 3-year-old girl alone on the beach, where she disappeared into the waves after falling at the water's edge.
Missing girl on the beach. Source: Girl's family social account
According to Tong Xiaojun, director of the Children's Research Center of the School of Sociology of the University of the Chinese Academy of Social Sciences, there is indeed a gap in China's legislation for the neglect of children by guardians. "Punishments related to child protection are now sporadic, for example, there are some provisions related to minors in the criminal law, but more protective treatment for juveniles who break the law and commit crimes, while systematic and scientific protection or punishment crimes for victims of child harm and perpetrators are relatively lacking."
She believes that the protection of children, or the protection of minors, is at the heart of the protection of children from man-made harm. "Our entire society lacks this core understanding of the protection of minors, does not realize that the protection of minors is closely related to each of us, and parents often have harmful behavior, but they do not realize that only after the child has obvious mental or behavioral problems, he realizes that something is wrong."
Negligence leads to child casualties
Should guardians be held accountable?
What is the responsibility for the death or injury of children caused by the negligence of guardians? Are there corresponding provisions in our laws?
Zhang Hongwei, a professor at the Juvenile and Family Law Research Center of Jinan University, told Chinanews.com that minors are a special group that needs to be cared for and protected, both legally and reasonably. China's requirements for the duties of child guardians to ensure the healthy growth of minor children are all stipulated in the Criminal Law, the Law on the Protection of Minors, and the Law on Administrative Punishments for Public Security.
He pointed out that "parental responsibility" usually includes civil, administrative, and criminal liability. According to Article 4 of the Law on the Protection of Minors, whether the parents of a <>-year-old girl in Shanghai should bear criminal responsibility depends on how the criminal law evaluates the consequences of the loss of a minor child caused by the parents' subjective negligence.
According to reports, as far as the current criminal law is concerned, when the parents or guardians of minors subjectively and intentionally carry out relatively serious acts that infringe on the legitimate rights and interests of minors, the criminal law has dealt a severe blow, such as the crime of intentional homicide, intentional injury, abuse, etc. However, when the parents or guardians of minors do not have subjective intention to infringe upon the lawful rights and interests of minors, the evaluation of criminal law is more cautious.
"China's criminal law stipulates that only those who commit crimes of negligence are criminally responsible if the law provides for it, and the main emphasis is still on subjective intentional situations, but how to pursue criminal responsibility for the negligent acts in the care of guardians is blank, and there are no specific provisions in this regard." Zhu Yongping, director of Guangdong Datong Law Firm, told Chinanews.com.
This is also reflected in practice. In a 2022 article published in Children's Research entitled "Re-discussion of the Criminalization of Parental Guardianship Negligence", the author compiled 2017 cases of parental guardianship negligence resulting in the death or injury of minors from 2021 to 119, and found that only 3.36% of them were covered by criminal law.
Chinanews.com's combing of similar judgments on the China Judgment Documents Network also found that in many accidents such as drowning and falling of children, the court found that the guardian bore the main responsibility because the guardian failed to fulfill his duties. However, there have been few cases in which parents have been held criminally responsible.
Legal reasonableness is "distinctive"
Is it feasible to set up the crime of "neglect of childcare"?
In view of the frequent occurrence of parental dereliction of duty, some netizens suggested that the crime of "neglect of child care" should be set up to strengthen the legal responsibility of guardians. In recent years, members of the legal profession have made similar appeals, and members of the National Committee of the Chinese People's Political Consultative Conference have jointly submitted the "Proposal on the "Criminalization" of Dereliction of Duty (Negligence) in the Guardianship of Minors.
According to Zhang Hongwei, "(child) negligence" usually refers to the failure of parents or other guardians to provide food, shelter, clothing, medical care or supervision necessary for the growth of minors, resulting in harm to their health, safety and well-being. The case of a 4-year-old girl in Shanghai is the most serious of the "negligence" - "fatal child neglect". Extraterritorially, "fatal negligence" may be criminally liable for "manslaughter", among others.
Lifebuoy infographic. Photo by Zhu Liurong
The Scouts were in favor of this proposal. In her view, there is still room for improvement in the protection of children in our laws. "Now discussing the establishment of the crime of neglect of care is a suggestion made by the public to solve this case, and in fact, it is also a suggestion to improve China's existing laws and policies on the protection of minors." The establishment process of China's entire juvenile protection system is similar to the crime of neglect of care currently under discussion, and individual cases that have aroused widespread concern in society have played a great role in promoting it. However, this also shows that our child protection is fragmented and not systematic. ”
Tong Xiaojun believes that the protection of minors requires a series of legislation related to the protection of minors, and should establish corresponding crimes and sentencing standards according to the situation of man-made harm to children. One of the biggest characteristics of child neglect, compared with other child injuries such as abuse, is that the perpetrator is primarily a guardian or primary caregiver. In addition, the crime of child neglect includes six aspects: care neglect, emotional neglect, medical neglect, safety neglect, educational neglect, and child abandonment. "As in the case of what everyone is currently concerned about, from the perspective of child neglect, the core is safety neglect or safety negligence."
She pointed out that legislation setting up criminal liability clauses such as "neglect of children" can serve as punishment and warning on the one hand, so as to deal with similar cases systematically and scientifically; On the other hand, personnel engaged in juvenile protection work can have a law to follow, and can publicize and educate in advance, so as to play a preventive role.
"The establishment of the crime of 'neglect of children' is conducive to filling the gap in China's law on parents negligent behavior causing minors to become dangerous." Zhu Yongping said that in addition to parents, guardians of minors may also be other close relatives or institutions, and it is not appropriate to give too much consideration to the emotional problems of parents and choose to ignore their legal responsibilities. As long as they have the legal responsibility for guardianship and do not take good care of them, resulting in the occurrence of dangerous results for minors, they should bear legal responsibility.
He also stressed that the degree of legal liability should be determined according to the degree of subjective negligence of the guardian, such as whether the danger can be foreseen, the degree of accident in which the danger occurred, and whether the result is serious. It is proposed to add a "neglectful child care" penalty clause to the revision of the Public Security Administration Punishment Law, through the prosecution of minor crimes, as a transition. If there are more extreme cases later, then transition to criminal law legislation to pursue them.
Experts say the law is not the only way
Child protection is the responsibility of society as a whole
However, the experts interviewed also believe that the prevention and treatment of child neglect is a social proposition, and it is unrealistic to hope that the law will completely solve the problem. In addition to criminalization, it is also necessary to strengthen social support measures and build a "protective wall" for child safety.
Tong pointed out that many parents actually unconsciously commit crimes or make mistakes. If you want to hold you accountable, you must find out whether your parents have received publicity or education on the protection of minors. "In the protection of minors, we must publicize in advance, guide parents in the process of guardianship and performance of duties, especially those parents who lack awareness of their own guardianship harmful behaviors, let parents know what behaviors may cause child safety problems, and learn to prevent and avoid this situation."
In her view, in the overall work of protecting minors, the government has the responsibility and obligation to develop the mind of the whole society. "First of all, we need to have a sound legal system, and the system that inspires the people's hearts must also be sound, and then we need to say whether the guardian obeys the law? What if it is complied with? What is the reason for non-compliance? If there is no special reason, then of course it should be punished. ”
She believed that child protection was the responsibility of society as a whole, especially in public. The family is indeed the first priority, but in many cases it is powerless, and the government needs to do the bottom up, and the community, schools, social organizations, etc. need to do a good job of services.
Zhang Hongwei suggested that preventing such tragedies can start from two points. On the one hand, guide parents to better perform their guardianship duties, and provide a safe, healthy and friendly growth environment for minors from the family, society and national levels. On the other hand, while cracking down on cases of intentional infringement of the lawful rights and interests of minors, parents or other guardians are urged to perform their guardianship responsibilities through multiple legislation, so as to avoid irreparable and serious consequences caused by the negligence of parents or other guardians.
"In the long run, due caution should draw on extraterritorial experience, and in the future, the crime of 'neglect of minor children' may be added in due course to further strengthen the legal awareness of parents or guardians and protect the physical and mental health of minor children, but for the time being, it will be limited to causing the death or major disability of minor children to pursue criminal responsibility." Zhang Hongwei said. (End)