Citizens will be punished after committing criminal acts, but sometimes the person who commits criminal acts has a special identity, such as illness or pregnancy, and the person who commits criminal acts is breastfeeding. At this time, special measures will be taken for this group of people for some purpose. Do you know the provisions of the Criminal Procedure Law on the crime of breastfeeding?
First, pregnant women and lactating women in China criminal law.
(a) the provisions of China's criminal law on pregnant women and lactating women
Pregnant women and lactating women are special legal subjects and are used to being called "pregnant women" in criminal judicial activities. (1) When suspected of committing a criminal offence, the criminal law gives special care because of its special status. Among them, the provisions on pregnant women are relatively clear, but the concept of lactating women is not adopted in the criminal law, which is related to the provisions on "women who are breastfeeding their own babies".
Article 65 of China's Criminal Procedure Law stipulates that criminal suspects and defendants are pregnant or breast-feeding women, and those who are released on bail may be released on bail pending trial. If the special care for pregnant women is not obvious enough, the following provisions undoubtedly fully embody this spirit: Article 72 of the Criminal Procedure Law stipulates that criminal suspects and defendants who meet the conditions for arrest but have special circumstances may be placed under residential surveillance, including women who are pregnant or breastfeeding their babies. Article 254 of the Criminal Procedure Law stipulates that a criminal sentenced to life imprisonment, fixed-term imprisonment or criminal detention may be temporarily executed outside prison if he is pregnant or nursing a baby. In addition, it is also reflected in the regulations specifically for pregnant women: Article 49 of China's Criminal Law stipulates: "Women who are pregnant at the time of trial shall not be subject to the death penalty." At the same time, Article 25 1 of the Criminal Procedure Law also stipulates that in the process of executing the death penalty, if a prisoner is found to be pregnant, the execution shall be stopped and immediately reported to the Supreme People's Court for a ruling by the Supreme People's Court; If an order is made to stop execution, it shall be reported to the Supreme People's Court for revision.
In addition, relevant judicial interpretations further clarify the application of criminal law to pregnant women. 1The Reply of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Serious Criminal Cases by People's Courts, published on September 20, 983, answered the question of induced abortion: before the case was brought to the people's court, the defendant (pregnant woman) was induced to abortion while in custody; Or when the court accepts the case, the defendant (pregnant woman) is induced to labor, and should still be regarded as a pregnant woman, and the death penalty is not applicable. (2) 1983 The Reply of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Serious Criminal Cases (II) made clear the meaning of "the death penalty is not applicable to pregnant women at trial": the death penalty is not applicable to immediate execution and the death penalty is suspended. 199 1 03 18, the research office of the Supreme People's Court made it clear in the telephone reply on how to understand the question that "the death penalty is not applicable to pregnant women at trial" that the defendant who is pregnant during detention is regarded as "at trial", regardless of whether her pregnancy violates the national family planning policy, whether she has spontaneous abortion or induced abortion, and whether she is transferred to prosecution or trial after abortion. (3) The "Reply of the Supreme People's Court on whether the death penalty can be applied in the trial of spontaneous abortion cases of pregnant women in custody" 1998, which came into effect on August 3, continued the above position and responded to the issue of spontaneous abortion: "A pregnant woman who has been prosecuted and tried for the same fact while in custody because of a suspected crime shall be deemed as a' pregnant woman at trial' and shall not be deemed as a' pregnant woman at trial' according to law.
(B) the criminal law of "pregnant women" interpretation
Pregnant women, as the name implies, are so-called pregnant women, and it seems that there is no need for further explanation. The provisions of China's criminal law and criminal procedure law on pregnant women use similar expressions such as "pregnant women", which is proof. However, further study will find that the facts are far from simple and clear, especially in the understanding of "pregnant women at trial", which is controversial.
It can be seen from a series of judicial interpretations that the understanding of pregnant women has gone far beyond its usual meaning. Take Article 49 of China's Criminal Law as an example. If its literal meaning is strictly observed, women who do not apply the death penalty are pregnant only at trial, that is, from the date when the court accepts the criminal case to the date when the court makes the final judgment (including the judgment in trial supervision and death penalty review procedures). However, through various judicial interpretations, "pregnant women" who had induced abortion or spontaneous abortion before the trial were also interpreted as "pregnant women at the trial"; Moreover, according to the provisions of Article 25 1 of the Criminal Procedure Law, if a criminal is found pregnant during the execution of the death penalty, the death penalty is not applicable. The discovery of "pregnancy" mentioned here usually refers to the situation that she was pregnant at the time of trial, but failed to be discovered at the time of trial for various reasons, which still belongs to the adjustment scope of Article 49 of the Criminal Law. However, the following special circumstances cannot be ruled out: those who were not pregnant at the time of trial, but became pregnant during the delivery of the death penalty. Although this situation is usually difficult to happen, the theoretical possibility can not be ruled out, such as being raped and pregnant by the staff in the supervision place or other men; Or deliberately seduce men to survive and take the opportunity to conceive a fetus; Or through bribery and other means, get the opportunity to share a room with her husband and get pregnant with a fetus; Even artificial insemination; Wait a minute. Especially during the probation period, the two-year probation period provides enough time, space and possibility for female prisoners to get pregnant. Obviously, pregnancy during the execution of punishment can no longer be interpreted as "pregnancy at trial".
Judicial interpretation and Article 25 1 of the Criminal Procedure Law both exclude the application of the death penalty to the above-mentioned cases that cannot be listed as "pregnancy at trial". What is the legal basis? There is a popular view that the word "trial" has been interpreted in an expanded way, and that the term "trial" mentioned here is not limited to the court's trial and judgment activities, but also includes litigation activities such as filing a case, investigating, approving arrest, examining and prosecuting. Conduct trials and criminal execution activities to realize judgments. This is actually equating "trial" with the whole "criminal procedure". There is some truth in this explanation, but why does the criminal law choose the word "trial" to represent the whole litigation activities, instead of directly stating that "the death penalty is not applicable to pregnant women in criminal litigation activities"? Especially after the revision of 1997 criminal law, it still retains the original expression of 1979 criminal law, which deserves researchers' attention and consideration. As a result of the expanded interpretation, the "trial" stipulated in Article 49 of the Criminal Law cannot be unified with the "trial" in other provisions of the Criminal Law, resulting in legal contradictions and conflicts.
In addition to the provisions of Article 49 of the Criminal Law, the provisions of the Criminal Procedure Law on the application of compulsory measures and temporary execution outside prison also involve pregnant women. There is no relevant judicial interpretation of the word pregnant woman in the Criminal Procedure Law. We believe that in order to effectively protect the legitimate rights and interests of pregnant women and promote the unification of laws, the term pregnant women should be interpreted uniformly, and women after induced abortion and natural abortion should also be interpreted as pregnant women.
Second, the criminal law protects pregnant women and lactating women.
(A) the application of criminal coercive measures
Judging from the provisions of the Criminal Procedure Law, pregnant women and lactating women should generally avoid personal detention as much as possible. However, as far as the specific application of criminal compulsory measures is concerned, there are still the following issues that need to be further clarified:
First, can subpoenas be applied? Compulsory summons is essentially a kind of compulsory summons, which has no nature of personal detention and belongs to the lightest compulsory measure in all criminal cases. Therefore, it is theoretically no problem to apply compulsory summons to pregnant women and lactating women. In the actual implementation process, it should be noted that even subpoenas have their applicable conditions and procedures. The detention of pregnant women and lactating women should be strictly enforced according to law. The applicable object of summons is a criminal suspect who refuses to be questioned after being legally summoned, and the summons may not be executed without being summoned. The duration of summons shall generally not exceed 65,438+02 hours. If the case is particularly serious and complicated, it shall not exceed 24 hours. The criminal suspect shall not be detained in disguised form by continuous summons, and the criminal suspect shall be guaranteed food and necessary rest time. For pregnant women and lactating women, even if they refuse to be questioned after being summoned according to law, they should try to avoid taking coercive measures; Even if summoning is applicable, we should always pay attention to their physical condition to ensure the safety of the fetus or the timely breastfeeding of the baby.
Second, can detention or arrest be applied? China's criminal procedure law stipulates that pregnant women and lactating women who meet the arrest conditions can be placed under residential surveillance. Here, there are no other applicable conditions except the requirement of specific identity. This shows that as long as women are pregnant and breastfeeding, the application of arrest should generally be ruled out. However, the expression of "residential surveillance" in the law shows that the possibility of applying arrest still exists. As for the circumstances under which arrest can be applied, there are no clear standards and conditions. Judging from the purpose of pretrial detention, it is mainly to show other values such as safeguarding litigation and protecting human rights based on affirmative detention. On this basis, we should consider how to standardize detention measures and eliminate negative effects. Therefore, the application of arrest to pregnant women and lactating women is limited to not arresting, which has obvious practical possibilities such as obstructing litigation and continuing crimes. Although there is the possibility of obstructing litigation and continuing to commit crimes, if there is no evidence to prove that this possibility is urgent and obvious, arrest shall not be applied, otherwise the above provisions may become a mere formality and cannot effectively protect the legitimate litigation rights and interests of pregnant women and lactating women.
Third, can pregnant women take medicine after induced abortion or spontaneous abortion? For pregnant women, the death penalty cannot be applied after abortion, and the judicial interpretation has been clear, but for pregnant women, can arrest be applied after abortion? There is no such provision. We believe that from the humanitarian spirit, the application of arrest should generally be excluded. Because the humanitarianism mentioned here is not only based on the consideration of the fetus, but also on the situation of pregnant women, so we can't ignore humanitarianism because of the miscarriage of the fetus. In reality, in order to apply arrest to pregnant women, some investigation organs force pregnant women to have an abortion by coercive means, which is actually a malicious evasion of the law. Laws are used to observe and enforce, and malicious evasion of legal provisions is of course prohibited by law. If the legal effect of the above practices is recognized, it is tantamount to encouraging the investigation organs to handle cases illegally.
(2) an application for temporary execution outside prison
Temporary execution outside prison is a change in the way of penalty execution. The original intention of legislation is to solve the problem of penalty execution for criminals who are not suitable for execution in supervision places. However, due to the lack of supervision over the execution outside prison, in some areas it is almost unsupervised, and the temporary execution outside prison, including medical parole, almost means the early release of criminals. In this way, temporary execution outside prison has become the "Tang monk meat" that everyone wants to eat in the eyes of free prisoners. In order to obtain temporary execution outside prison, people do not hesitate to take various means. For those who obtain temporary execution outside prison by illegal means such as bribery, the Criminal Procedure Law clearly stipulates that the time limit for temporary execution outside prison is not included in the sentence. However, how to deal with the malicious evasion of the temporary execution outside prison has not been involved in the law and needs to be discussed.
The provision of temporary execution outside prison for pregnant women has been well implemented. Although the law stipulates that "can" rather than "should" be temporarily executed outside prison, it is still rare for pregnant women not to be executed outside prison. Due to the obvious huge benefits of temporary execution outside prison, there is a strong power source to obtain temporary execution outside prison through malicious pregnancy. In Shanghai, such a thing happened, which is a good example: after a woman was detained for a crime, she was identified as pregnant by deception and released on bail pending trial. She got pregnant successfully while she was on bail pending trial, so she was temporarily executed outside prison while the penalty was being executed. Later, although the evidence of bail pending trial was found out, it was a fact that she was pregnant during bail pending trial. It is obvious that this pregnant woman is pregnant maliciously. Can she be temporarily executed outside prison?
There are also specific problems in the temporary execution of lactating women outside prison. As mentioned earlier, because the Criminal Procedure Law stipulates that "a woman is breastfeeding her own baby", if the factual judgment is made, as long as the factual state of breastfeeding her own baby continues, it can be temporarily executed outside prison; As long as the child does not stop breastfeeding for one day, the mother will not be put into prison for execution. In order to continue to enjoy the free life outside the prison, the mother in prison will "breastfeed to the end" and breastfeed before the end of the sentence. Such a situation is undoubtedly a malicious evasion of the law. In fact, some people in academic circles and practical departments have also paid attention to this point and called for appropriate restrictions on lactation. (7)
For malicious pregnancy, we think that the application of temporary execution outside prison should be ruled out. The reason is not that the law stipulates "can" rather than "should", but that malicious evasion of the law is not the observance and enforcement of the law, but the destruction and betrayal of the law, the fundamental denial of the law and the irony of the legal spirit. To admit it is to deny the law, and to protect it is to destroy the law, thus presenting a legal paradox. In the sense of general law, we believe that malicious evasion of the law is never under the protection of the law, and malicious evasion of the law is always invalid. "Women who breastfeed their babies" should be defined as "lactating women" and should be interpreted as legal status. For women who have breast-feeding children over the age of/kloc-0, the application of temporary execution outside prison should generally be excluded. The reason for excluding the application is not the "possibility" in the legal provisions, but the malicious evasion of the invalidity of the law.
(3) Exclude the application of the death penalty
China's criminal law and criminal procedure law explicitly exclude the application of the death penalty to pregnant women, and the application of the death penalty is no exception, thus better safeguarding the legitimate rights and interests of pregnant women. However, in the process of law application, there are still some specific problems worth discussing.
First, maliciously evade the death penalty. Malicious evasion of the death penalty is a kind of malicious evasion of the law. In the general legal sense, it is invalid to evade the law maliciously. If we stick to this position on the application of the death penalty, we will come to the conclusion that the death penalty is applicable to those who maliciously evade the death penalty. Therefore, it is theoretically possible to apply the death penalty to pregnant women who are pregnant maliciously. However, the application of the death penalty is obviously not a purely theoretical issue, but also has criminal policy considerations. In particular, it should be noted that the current international environment and future development trend are to restrict the application and abolition of the death penalty. China is one of the countries that still retain the death penalty, but it is our consistent insistence to use it with caution and kill less. In theory, malicious evasion of the law should be prohibited, but from the perspective of criminal policy, applying the death penalty to pregnant women who maliciously evade the death penalty faces great public opinion and moral pressure. In the case that retaining the death penalty is controversial and criticized repeatedly, we should carefully weigh the advantages and disadvantages between maliciously evading the law and safeguarding the right to life. Faced with the choice between life and death, it is human instinct for a guilty person to live wholeheartedly at all costs. His feelings can be forgiven and his heart can be pitied. China's traditional culture also says that "killing people is not excessive" and "forgiving others at the same time", which fully embodies the humanitarian accumulation in our cultural tradition. Therefore, we believe that under the joint action of the legislative trend of abolishing the death penalty, criminal policy, humanitarian spirit and traditional culture, the theory of "malicious evasion of the law is invalid" insists on making concessions to let pregnant women survive.
Second, think about whether pregnant women should apply the death penalty with a suspended execution. As the death penalty with reprieve is one of the execution methods, it is not an independent punishment, and the death penalty does not apply to pregnant women, which of course means that the death penalty with reprieve should not apply to them, so it seems unnecessary to discuss it. However, in our view, there is a huge gap and substantial difference between reprieve and immediate execution of death penalty, and it may not be appropriate to position reprieve as the execution mode of death penalty.
The suspended execution of death penalty is the original creation of China's death penalty application system. The reasons are not only the consideration of the criminal policy of killing less but also the compromise in the strong appeal of abolishing the death penalty. But this originality is not necessarily "pleasing": the death penalty is still applicable to criminals in the eyes of critics, but its effect is "giving people a handle". In the eyes of supporters, this is actually a way to keep people alive, which is worthy of recognition. But why should we label the death penalty "notorious"? In the victim's view, the death penalty exists in name only, and the cursed person will eventually escape life and death, and the expected good and evil will still fail, and they will resent the ideal of the rule of law. In the eyes of criminals, they will know that even if they are sentenced to death according to law, they still have hope of survival. Of course, good people are grateful and carefully turn over a new leaf. Evil and stubborn people may despise the law and ignore the legal authority from now on.
In essence, there is a huge difference between death penalty and immediate execution of death penalty. Although it provides a link and buffer between immediate execution of death penalty and life imprisonment, within the death penalty system, under the same penalty method, the difference in severity is too obvious to be unified in the same penalty. Therefore, instead of the current system design, it is better to separate it as a punishment or abolition. It is precisely because of the above differences between the suspended execution of death penalty and the immediate execution of death penalty that there is still room for discussion on whether to apply the suspended execution of death penalty to pregnant women before the legislative amendment. A reprieve will not immediately deprive people of their lives; While saving lives, it also gives criminals a chance to save themselves. Whether to save yourself or not depends entirely on yourself. Of course, it is a good design if pregnant women sentenced to death penalty with a suspended execution can be temporarily executed outside prison.
Third, pregnancy during the execution of the death penalty. As mentioned earlier, Article 25 1 of the Criminal Procedure Law implies that the death penalty does not apply to pregnant women during the execution of the death penalty. After the death sentence is made, even if the death sentence is executed immediately, it will take some time before it is actually delivered for execution; If suspended, there will be a probation period of up to two years. Therefore, in the execution stage of the death penalty, especially in the execution process, the possibility that the criminal woman is pregnant cannot be ruled out. In this case, according to Article 25 1 of the Criminal Procedure Law, if the criminal is found to be pregnant, the execution of the penalty shall be stopped; If it is verified through investigation, the sentence shall be changed, that is, the death penalty shall not be applied. Judging from the legislative intention of absolutely excluding the death penalty for pregnant women, this conclusion is appropriate But the problem is that the Criminal Procedure Law is a procedural law, and it is not allowed to stipulate whether the death penalty is applicable, which is beyond the scope stipulated in Article 49 of the Criminal Law. Therefore, its legitimacy is in doubt.
The absolute exclusion of the death penalty for pregnant women is completely in line with the original intention of legislation; It is a natural conclusion that the death penalty should not be applied to pregnant women during the execution. In view of the fact that the Criminal Procedure Law has no right to stipulate the substantive issues of the application of punishment, we suggest amending the relevant provisions of the Criminal Law to write the above-mentioned situations in which the death penalty is not applicable into the Criminal Law.
Fourth, does the death penalty not apply to lactating women? China's criminal law only takes care of lactating women in the application of criminal compulsory measures and penalty execution methods, but does not give special care in the application of death penalty. Therefore, from the perspective of legislative provisions, it is obvious that the application of the death penalty cannot be ruled out. However, from the perspective of necessity, is it necessary to give care to lactating women that does not apply the death penalty? If the lactation period is strictly limited 1 year, it is quite reasonable not to apply the death penalty to lactating women. If this cannot be done, it is also a good choice to learn from overseas experience and stipulate that the death penalty will not be executed within a certain period of time (for example, two years).
Fifth, the application of death penalty in abnormal pregnancy, such as ectopic pregnancy and hydatidiform mole, has been studied by some scholars. Researchers suggest that women with abnormal pregnancy belong to pregnant women, and even if the fetus cannot survive, the death penalty should still be ruled out. We agree with this, and we can't deny her pregnancy status just because of abnormal pregnancy. Moreover, as mentioned above, the humanitarian spirit is not only aimed at the fetus, but also at pregnant women; Even if it is found that the fetus cannot survive, special care is still needed for pregnant women.
There is no clear stipulation on breastfeeding time in China's criminal law, but in judicial practice, breastfeeding time is one year. According to the provisions of the Criminal Procedure Law on the crime of breast-feeding, if a criminal suspect commits a crime during breast-feeding, he can be executed outside prison, which is also the embodiment that the death penalty does not apply to pregnant women.