家长不送子女接受义务教育刑事责任探析——以新疆为视角

The Criminal Responsibility of Parents who Refuse to Send their Children to Receive Compulsory Education——Judicial Practices in Xinjiang

保障未成年人的受教育权是我国政府一直致力于解决的问题。2014年后,在新疆,有建议采取刑事司法措施,以"利用迷信破坏法律实施罪"追究不送子女接受义务教育的学生家长的刑事责任,但该建议有违罪刑法定原则。《刑法修正案(九)》新增了"利用极端主义破坏法律实施罪",但是由于存在对"极端主义"缺乏明确界定以及打击对象不明确等不足,导致该罪名目前在法律适用上还存在困难。家长不送子女接受义务教育具有一定的社会危害性,有必要通过严厉的刑事处罚予以规制。具体而言:对于普遍存在于全国的,受片面短视的教育观念影响而不送子女就学的行为,在侵犯公民人身权利、民主权利类犯罪中做出规定;对于家长因受宗教极端主义影响而不送子女就学的,在对宗教极端主义行为进行界定后,在修订原有罪名的基础上设立"组织、利用会道门、邪教组织或者利用迷信、极端主义破坏国家法律、行政法规实施罪"予以刑事处罚。

To guarantee the right of minors to receive education is the problem the Chinese government has been trying to solve. After 2014, criminal justice measures have taken in some areas in Xinjiang. Parents who refused to send their children to receive compulsory education were convicted with "use superstition to break the law enforcement". However, this practice violates the Principle of legality. The Ninth Amendment of the Criminal Law is supplemented with the crime of "use Extremism to break the law", but it is still difficult to apply the Amendment owing to the lack of a clear definition of "extremism" and the undefined target. Those Parents do harm to the society, which needs to be regulated by severe criminal punishment. Specifically, the nationwide behavior that parents who are influenced by short-sighted education concepts shall be ruled by the crime of the violation of civil rights and democratic rights;parents who are influenced by extremism shall be accused of "to break national laws and administrative regulations by organizing and exploit superstitious sects and secret societies, cults or by making use of superstitions and extremism", after a clear definition of religious extremism is done.