Text / Liu Liang
Faced with emotional and legal choices, what should I do?
This problem may be a big entanglement that many abducted children face after reuniting with their biological parents.
Recently, Sun Haiyang, the prototype of the movie "Dear", has gone through untold hardships and finally reunited with his long-lost son, putting an end to the 14-year-long "Looking for a Child".
Besides the reunion, the discussion about "adoptive parents" in the kidnapping of children continues.
Some netizens said that “adoptive parents” should give legal forgiveness for raising their children in a healthy way, so as not to hurt the children's hearts; more netizens called for legal sanctions to avoid more "tragedies".
In the case of child abduction, how does the law treat the so-called "adoptive parents" of abducted children?
Chang Sha, a partner of Beijing Jingdu Law Firm, recently launched a legal analysis of this in an interview with a reporter from China News Service.
How is the law "convicted"?
With regard to the purchase of abducted children, Article 241 of the Criminal Law stipulates that those who purchase abducted women or children shall be sentenced to fixed-term imprisonment, criminal detention or surveillance of not more than three years.
However, from the perspective of reality, the process of making the above-mentioned legal judgment is not as simple as imagined, and multiple factors need to be considered comprehensively.
Chang Sha pointed out that the crime of buying abducted women and children was written into the Criminal Law in 1997. At that time, it stipulated that “buying abducted women and children, according to the wishes of the bought women, does not hinder them from returning to their original place of residence. If the bought child has no abuse and does not hinder his rescue, he may not be held criminally responsible."
However, when the Criminal Law was revised in 2015, the provision was further revised to read “buying abducted women and children, and if there is no abuse of the children who are bought, and if they do not hinder their rescue, they can be given a lighter punishment; Women whose wishes do not prevent them from returning to their original place of residence may be given a lighter or mitigated punishment."
Chang Sha pointed out that this amendment changed the original "no criminal responsibility, and may not need to bear criminal responsibility" to "need to bear criminal responsibility, but the punishment can be lightened or mitigated."
"This amendment to the Criminal Law has increased the penalties for the buying of abducted women and children. It is a milestone in my country’s anti-trafficking and anti-trafficking work. It makes the society aware of the illegality of this behavior from the source." Chang Sha said, "If adopted After being abducted and trafficked women or children, rape, illegal detention, intentional injury, or insults shall be dealt with in accordance with the corresponding crimes and punished in accordance with the provisions on the combined punishment of multiple crimes.”
How to consider the emotional will of the adopted son?
In the Sun Haiyang child hunting incident, if relevant evidence does show that "adoptive parents" participated in the buying process, they may face the above-mentioned legal sanctions.
But what are the specific penalties?
The actual implementation situation also needs to be combined with the law and reality.
Chang Sha pointed out that according to current media reports, Sun Haiyang’s son, Sun Zhuo, was abducted and sold around 2007. According to the 2007 Criminal Law, the crime of buying abducted women and children has not been revised. Women and children who, in accordance with the wishes of the bought women, do not hinder their return to their original place of residence, do not abuse the bought children, and do not hinder their rescue, they may not be held criminally responsible”.
"If Sun Zhuo's'adoptive parents' meet the above circumstances, they may not be held criminally liable. If the above circumstances are not met, according to Article 241 of the Criminal Law, the'adoptive parents' may be sentenced to three years The following fixed-term imprisonment, criminal detention or surveillance." Chang Sha said.
However, the above-mentioned penalties need to be considered comprehensively based on the actual situation. According to Article 30 of the "Opinions on Punishing the Crimes of Abducting Women and Children" issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice in 2010, the abducted persons should be bought and sold. Women and children who have not committed torture or abuse to the bought women or children or have formed a stable marriage and family relationship with them, but should still be investigated for criminal responsibility in accordance with the law, generally should be given a lighter punishment; if they meet the conditions for probation, probation can be applied in accordance with the law .
Whoever buys abducted women and children with minor crimes may be exempted from criminal punishment in accordance with the law.
Chang Sha's analysis pointed out that in the case of Sun Haiyang’s child search, the attitude of his biological son, Sun Zhuo, can be used as a discretionary sentencing circumstance to assess the severity of the crimes of his “adoptive parents”. It belongs to the circumstance of legal sentencing.
“For criminal acts that should be investigated for criminal responsibility in accordance with the law, it is necessary for the national prosecutors to initiate criminal proceedings, which will be tried by the court to finally determine whether the criminal suspect bears criminal responsibility. The crime involved in this case is the crime of buying abducted women and children, such cases It is a public prosecution case, not a case to be dealt with after telling.” Chang Sha said, this also means that Sun Zhuo’s disapproval of prosecution can only represent his personal opinions, and will not lead to non-prosecution because Sun Zhuo does not support the prosecution.
Does the law support "the same crime as buying and selling"?
In the Criminal Law, the crime of abducting and trafficking in women and children and the crime of buying and selling abducted women and children are distinguished and convicted in law.
For example, Article 240 of the Criminal Law stipulates the crime of abducting and trafficking in women and children. The minimum sentence is 5 years imprisonment and the maximum sentence is death.
Article 241 of the Criminal Law stipulates that the crime of buying abducted women and children shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance.
Whoever buys abducted women and children, does not abuse the bought children, and does not hinder their rescue, can be given a lighter punishment; according to the wishes of the bought women and does not hinder their return to their original place of residence, they can be given a lighter or mitigated punishment Punishment.
"The law distinguishes the above-mentioned two kinds of behaviors because of the different social harms. The'sales of the same crime' violates the principle of the criminal law, so the two kinds of behaviors are still distinguished in law to deal with different social harms. Impose different penalties." Chang Sha said.
However, whether "trading" is the same crime or not depends on the specific circumstances.
Chang Sha pointed out that if the party who bought the abducted women and children conspired with others or abetted others to abduct women and children before the buying, they would be suspected of violating the crime of abducting women and children in the Criminal Law. At this time, the "trading" is the same crime, but Appropriate penalties should also be imposed according to the circumstances of the crime.
She concluded that in 2015, the crime of buying abducted women and children has been revised. From the very beginning, there was an exemption clause, which allowed no criminal liability to be pursued. It was changed to a lighter or mitigated punishment. The exemption clause was deleted, and the “buying The principle of "convicted" also reflects the state's attitude of severely punishing the buying and selling of abducted women and children.
How to consider "a child is abandoned"?
In the face of doubts from the outside world, adoptive mothers have suggested that the child is abandoned by a divorced family. How should the law be considered?
Chang Sha said that the statement needs to provide sufficient evidence to prove it.
At the same time, according to Article 1093 of the Civil Code, orphans who have lost their parents, minors whose biological parents cannot be found, and minors whose biological parents have special difficulties and cannot afford to raise them can be adopted and abandoned by divorced families. Adoption does not fully meet the requirements for adoption, and it is necessary to analyze which adoption conditions are met according to the specific circumstances.
In addition, Article 1094 of the Civil Code stipulates that only guardians of orphans, child welfare institutions, and biological parents who have special difficulties and are unable to raise their children can be adopted as adopters. Therefore, it is also necessary to adopt abandoned children from divorced families. There is a qualified adopter for adoption.
According to Article 105 of the Civil Code, adoptions should also be registered with the civil affairs department of the people's government at or above the county level.
The adoption relationship shall be established from the date of registration.
In the case of adopting a minor whose biological parents cannot be found, the civil affairs department that handles the registration shall make an announcement before registration.
"According to the above regulations, even if you adopt a child from a divorced family, you need to register with the civil affairs department of the people's government at or above the county level. Without registration, the adoption relationship will not be established. Therefore, the statement that the child is abandoned by a divorced family does not affect the handling of the case. , It is necessary to provide sufficient evidence to prove that it is a legal adoption. If the evidence cannot be provided, the statement cannot be established and does not affect the handling of the case.” Chang Sha said.
How to treat the bilateral "parent" relationship?
On one side are the biological parents whose blood is thicker than water, and on the other are the hard-working "adoptive parents".
How to balance the bilateral "parents" relationship is a distress faced by many abducted children.
If the child chooses to return to the original family, how should the relationship between Sun Zhuo and his “adoptive parents” be defined?
Is there still an obligation to support "adoptive parents"?
If Sun Zhuo decides not to return to his original family, is he still obligated to support his biological parents?
Regarding this, Chang Sha stated that, according to Article 1113 of the Civil Code, there are circumstances in which the Civil Code is invalid for civil juristic acts or adoptions that violate the provisions of the Civil Code are invalid.
Invalid adoption is not legally binding from the beginning.
According to Article 153 of the Civil Code, civil juristic acts that violate the mandatory provisions of laws and administrative regulations are invalid.
She pointed out that it is illegal to buy abducted women and children, and according to current reports, the “adoptive parents” have not handled the adoption procedures for adopting Sun Zhuo. Therefore, regardless of whether Sun Zhuo chooses to return to his original family, Sun Zhuo is currently The adoption relationship with the "adoptive parents" is not established, and Sun Zhuo does not need to bear the maintenance obligation to the "adoptive parents", but is required to perform the maintenance obligation to the biological parents.