虐待被监护、被看护人罪的客观要素与司法认定

The Objective Elements of Ill-Treating Persons under Guardianship and Nursing as Well as Judicial Decision

虐待被监护、被看护人罪的侵害法益为被监护人、被看护人的人身权;只有对未成年人、老年人、患病的人、残疾人负有监护、看护职责的自然人和单位才能成为本罪主体;本罪有四个行为表现形式——违反(不履行)监护或看护义务、虐待行为、虐待行为必须达到"情节恶劣"程度以及本罪侵害对象只能是处在被监护、被看护情况下的未成年人、老年人、患病的人、残疾人。在司法认定方面,一是要考察涉案人员与被害人是否存在监护、看护责任关系,二是要考察行为人是否实施了"情节恶劣"的虐待行为。本罪与其他虐待型犯罪的关键区别在于:行为主体与行为对象的关系不同;二者违背的义务来源有所不同。

On the base of the elements of conduct, this article explores some basic problems about ill- treating persons under guardianship and nurse which is newly stipulated in the Ninth Amendment for Criminal Law. The article points out： the Rechtsgut that the crime infringes is right of the persons under guardianship and nurse; the subject is only those who is charge of taking care of juveniles, old men, sick men and disabled individuals; this crime has four forms for conducts breaching of duty of guardianship and nurse, ill - treating persons under his guardianship and nurse, what he has done is enough seriously and the victims are only those who are juveniles, old men, sick persons and disabled individuals. In the field of judicial decision, it is necessary to distinguish whether there is liability relationship, and whether there is ＂seriously＂ what the defendant has done. At last, this article points out the deference between this crime and the other ill -treating crimes lies in whether there is family relationship between actors and victims, as well as the duties from different original source.