On September 20, 2024, a short video of Qilu Evening News's "Sure Video" attracted the attention of many people: the ex-husband took the child from Wuxi to Guangzhou, and the mother was so desperate that she committed suicide after 254 days of searching for her son. Today's legal Q&A asks: "......, what responsibility does the ex-husband bear?" To answer this question, we need to start with guardianship and visitation rights.
Today's legal Q&A · Child abduction
1. Introduction to "Guardianship and Visitation Rights".
The Civil Code stipulates guardianship in the chapter on natural persons under the "General Provisions". Among them, the first paragraph of article 26 stipulates the content of the guardianship of minors, that is, parents have the obligation to raise, educate and protect their minor children. Accordingly, guardianship is not a right of a natural person, but an obligation, or a duty.
Article 27 stipulates the scope of guardianship of minors. The first paragraph stipulates that the parents are the guardians of the minor children, and most people understand that guardians in other orders cannot perform guardianship duties at the same time; In practice, many grandparents or maternal grandparents have in fact fulfilled their obligations to raise, educate and protect minors.
One might ask, why do most people have this view? In jurisprudence, there is an explanation called reverse reasoning, the formula of which is: to express one is to deny the rest; In fact, reverse reasoning only applies to cases where the consequences to be interpreted are not provided for by legal norms. Article 27 of the Civil Code provides for other guardians, according to which minors may have several guardians at the same time, only with different priorities.
The Civil Code stipulates that visitation is included in the chapter on divorce under the "Marriage and Family Section". According to article 1086, paragraph 1, visitation is one of the rights of parents; According to the second paragraph, the types of visitation include agreed and statutory, of which statutory visitation refers to a judgment made by a people's court.
The Civil Code stipulates the right of visitation as the right of parents, and most people do not understand the right of visitation in terms of guardianship duties, for example, most people believe that grandparents, maternal grandparents, and adult brothers and sisters do not have the right to visit. For example, the previous version of the legal examination counseling book discussed the visitation rights of grandparents or maternal grandparents, but since judicial practice does not support the visitation rights of the above-mentioned guardians, this view has been deleted.
Judicial practice does not support the right of close relatives such as grandparents and maternal grandparents to visit, and after the divorce of husband and wife, it is bound to exacerbate social conflicts, for example, in Beijing, Guangzhou, Wuxi City, Jiangsu Province, and other places, there are still hundreds of "purple ribbon" mothers or fathers across the country who are suffering from the pain of separation. Accordingly, the proper interpretation of guardianship and visitation rights is conducive to social harmony.
"Guardianship and Visitation Rights" in general
Some people may ask, what kind of legal responsibility should the ex-husband bear if the mother is so desperate to find her son that she commits suicide?
II. Legal interests protected by the crime of child abduction
Article 262 of the Criminal Code provides for the crime of child abduction. According to the provisions of this article, abduction here refers to separating minors under the age of 14 from their families or guardians. Since the crime is "the crime of infringing on the personal rights of citizens", most scholars have different views on the legal interests protected by the crime of child abduction.
For example, some scholars believe that the legal interest protected by the crime of child abduction is the personal freedom of children; According to the foregoing explanation, the abduction of children by close relatives does not constitute a crime. In fact, children and other minors may not have a reflexive understanding of personal freedom, and some people may ask, which legal interest is protected by the crime of child abduction?
In the view of this article, the interpretation of the specific crimes in the sub-provisions of the Criminal Law cannot be taken for granted, but should be interpreted according to the specific law, and the crime of child abduction corresponds to the guardianship in the Civil Code, for example, Article 262 clearly describes "separation from guardianship". Accordingly, the legal interests protected by the crime of child abduction are: guardianship duties, or guardianship order; Abduction of a child by a close relative to separate him from the family also constitutes this offence.
3. Circumstances of the crime of child abduction
Most people understand that child abduction as provided for in article 262 of the Criminal Law is a felony, and the sentence is fixed-term imprisonment of not more than five years or criminal detention according to the provisions of this article. However, some people may ask, why is this article also a type of "criminal detention"? This also needs to start with the circumstances of the crime of child abduction.
On the one hand, child abduction does not rule out the occurrence of cases between close relatives, such as the ex-husband who "ran" from Wuxi to Guangzhou with the child, and it is relatively reasonable to apply the penalty of criminal detention in such circumstances.
On the other hand, in traditional China, the "Criminal Law" provides for redemption, for example, before the "Cultural Revolution", there was also redemption in mainland judicial practice. The sentence of short-term detention can be applied to the penalty, and it is more reasonable to interpret the abduction of children by close relatives as a crime and sentence them to short-term detention.
One may wonder why judicial practice does not interpret the abduction of children by close relatives as a crime. In the view of this article, the main reason is that the four constituent elements of the crime are affected, and most judicial personnel believe that the Criminal Law independently stipulates specific crimes, and analyzes or explains that the crime of child abduction does not look for the constituent elements from the Civil Code.
For example, the embezzlement of common property by family members is a typical crime of embezzlement, but judicial practice recognizes that it constitutes theft, etc., or does not consider it a crime. The same is true for the interpretation of child abduction by relatives, which is considered by most judicial officers not to constitute a crime; Once interpreted as a crime, most judicial decisions may not consider custodial sentences.
Circumstances of the crime of child abduction
As far as the topic of what responsibility the ex-husband should bear for the mother's desperation to find her son, most people can be sure that the "mother" who has been searching for her son for 254 days has contacted her ex-husband; If the ex-husband lies and the mother is so desperate that she commits suicide, the judicial authorities shall pursue her criminal responsibility for the crime of child abduction in accordance with the law and apply the sentence of criminal detention. Once the ex-husband is held criminally responsible, the pain of the separation of hundreds of purple ribbon mothers or fathers can be "lifted".
Links to the main legal provisions
Civil Code of the People's Republic of China
Article 26: Parents have the obligation to raise, educate, and protect their minor children.
Adult children have an obligation to their parents to support, support and protect them.
Article 27: Parents are the guardians of minor children.
Where a minor's parents are deceased or have no capacity for guardianship, the following persons with guardianship capacity are to serve as guardians in order:
(1) Grandparents;
(2) Elder brother or sister;
……。
Article 1086:After a divorce, the parent who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist.
The manner and time of exercising the right of visitation shall be agreed upon by the parties; If the agreement is not reached, the people's court shall make a judgment.
……。
Criminal Law of the People's Republic of China
Article 262:Whoever abducts a minor under the age of 14 and separates him from his family or guardian is to be sentenced to up to five years imprisonment or short-term detention.