我国家暴虐童追诉限缩的批判性反思

The Restriction of Lawsuit Model on Domestic Child Abuse in China and the Critical Reflection

告诉才处理案件在我国采取"绝对自诉主义",在程序上尽管可以避免公权力对家庭的不当干预,但受虐儿童由于缺乏及时、有效的法律救济,长此以往可能引发更为严重的犯罪,而案件最终需要通过公诉途径解决。《刑法修正案(九)》就虐待被监护、看护人,新增设了虐待被监护、看护人罪,并对第260条虐待罪第3款"告诉才处理"进行了限缩。但受传统政治哲学和文化观念的影响,司法实践中限缩的告诉才处理,在诉讼启动的裁决上难以衡量。而家暴虐童行为追诉方式的公诉化,不仅是对寻求不同代际之间正义的积极回应,还是贯彻儿童最大利益原则的必然要求。此外,应综合考量实体法与程序法之间能否有效衔接,从而使得修法的预期效益最大化。

The case of no trail to without complaint takes the absolute doctrine of private prosecution, which excludes the intervention of other authorities except for court in our country. Although it is good for the absolute doctrine of private prosecution to avoid the intervention of authorities, due to lack of legal relief timely and effectively, the accumulation of long-term abuse could lead to more serious crimes. The 9 th amendment to criminal law added the crime of maltreating wards and caregivers, and made a revision of the third paragraph of maltreatment crime mentioned model. For the reserved "No Trail to Without Complaint", it is quite difficult to measure the criterion of measurement in the lawsuit start-up process. However, choosing the public prosecution of lawsuit model on child abuse, both responding to seeking the justice between different generations and conforming to implement the principle of best interests of children. Therefore, we should consider the substantial law and procedural law accordingly to measure whether they could be linked up effectively and to make the benefits of law amendment maximized.