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How to protect the minor children of prisoners?
Research on Protection of Minor Children of Prisoners in China
Zhang Xuemei
First, the legal protection of minor children of prisoners in China.
12-year-old Lian Lian is a rural girl in the suburbs of Beijing. At the age of five, she was forced into prostitution by her mother, resulting in repeated rape until 12 years old. Sometimes her mother helps others rape lotus flowers, but her father not only ignores them, but also often sends them to criminals' homes. After the incident in May 2003, four suspects, including Lian Lian's mother, were arrested, and Lian Lian's mother was sentenced to life imprisonment in September. His father escaped, and I don't know the news. After the incident, Lianlian was temporarily received by the local authorities to live in a nursing home.
The fathers of two little girls in Haidian District of Beijing were sentenced to life imprisonment for robbery and fighting. Her mother was sentenced to reeducation through labor for taking drugs. At the age of three, they were raised by the streets. Later, her mother took her daughter back. After a few days, she secretly pushed the child to the door of a relative's house and ran away. The two children were later sent to Shunyi Children's Village.
Both of the above cases involve the custody of prisoners' children. There are some children who are in the same predicament as them or are not as lucky as them and have no one to take care of them. It can be said that the protection of the rights and interests of children of prisoners in our country is still blank. The provisions of laws and regulations on the children of criminals are only reflected in the prison law, that is, Article 19 of the prison law: criminals shall not serve their sentences in prison with their children.
The protection of the rights and interests of children of criminals has become more and more prominent, which has aroused social concern. They are either unsupervised because their parents are serving their sentences, or face dropping out of school because of economic pressure, and some follow their parents on the road of breaking the law and committing crimes. The author believes that it is urgent to protect the rights and interests of children of prisoners. Protecting their rights and interests is not only the basis and key to ensure their healthy growth, avoid any discrimination and prevent them from committing crimes, but also conducive to maintaining social stability and development. This paper mainly discusses the common problems such as custody and education of prisoners' children, hoping to attract people's attention to the protection of prisoners' children's rights and interests and pay attention to their healthy growth.
Second, the necessity of protecting minor children of criminals.
(1) is conducive to the correction of parents' crimes.
Criminals face pressure from family, society, prison and other aspects after serving their sentences, and their psychology becomes more complicated and unstable. For most criminals, family is an important spiritual pillar of their reform in prison, and their children become their hope in the future. They hope that their children will not be adversely affected by their imprisonment, that their children will be cared for and will not be discriminated against, and that their children can live and study normally. In the emotional survey of prisoners, 86.8% felt sorry for their children, and 13.2% felt indifferent. Among them, 68% want their children not to be discriminated against, 32% want their children to be cared for, only 1 1.7% don't care, 3 1.3% want their children to have a good future, and 52.8% want their children to have a job and a bowl of rice to eat. From here, we can see that prisoners generally show concern for the present situation of their children. The current situation of children directly affects the performance of parents in prison. Therefore, helping and protecting the children of difficult criminals can help criminals eliminate worries and unhealthy psychology, help criminals correct and reform, and help maintain social stability.
(two) is conducive to the children of prisoners to restore confidence in human nature and society.
Another necessity to protect the minor children of prisoners is to restore their confidence in society and humanity, improve their situation, avoid vagrancy and ensure their healthy physical and mental growth. The imprisonment of parents will bring a serious blow to every family, and their underage children are the most vulnerable in the face of the blow. Some children feel that they are the children of criminals because their parents have served their sentences for crimes and lost confidence in society and themselves. Some children are hostile to everything because their parents have been punished, taking revenge on society, leading to abnormal development and even serious consequences. Because of age, psychology, living conditions, family structure and other reasons, they often lose the function of self-regulation. At this time, the active help and special protection of the government, schools, communities, relatives and teachers are particularly needed and urgent.
Second, the main problems faced by the minor children of prisoners
(1) Custody of minor children of prisoners
In real life, many minors are unable to implement the guardianship problem because one or both parents are serving their sentences, showing an unsupervised state, and their life and study are in a very difficult situation. This is mainly manifested in the following types of families:
(1) Both parents are imprisoned for crimes;
(2) One parent is dead or missing, and the other parent is serving a sentence;
(3) After the parents divorced, the parent who directly raised the child was imprisoned, while the other parent was unwilling or unable to raise the child.
Some of these children live with elderly grandparents, some live with relatives such as aunts or uncles, some are raised by organizations such as neighborhood committees or village committees, and some children wander alone in society because their relatives are unwilling or unable to take care of them. The parents of these children can't perform guardianship duties for them because they are serving their sentences, and the law doesn't clearly stipulate that when parents can't perform guardianship duties for their children for a short time or a long time, other qualified people must assume guardianship duties. At present, there is no case in China where the court ruled that parents were deprived of custody because of serving their sentences and appointed other qualified guardians.
This makes us wonder: How can the lives of these children be guaranteed? How to solve their school problems? If I live with my grandparents temporarily, what should I do if my grandparents die in the future? What if it is raised by other relatives or neighborhood committees? Among these children, quite a few still have serious psychological problems, such as violent tendency, strong desire for destruction, serious revenge, lying, withdrawn, inferiority complex, and weariness of learning. These problems directly affect children's healthy physical and mental growth and future development, and affect parents' performance in prison. How can these children grow up healthily if even the most basic rights of life and study that they should enjoy are not guaranteed? How to prevent them from committing crimes? How to make them grow into a person with social responsibility and legal awareness?
(2) Education of prisoners' children
The most direct impact of parents' imprisonment on families is financial difficulties, which may lead to insufficient protection for children's education. For example, some children can't afford tuition fees because of financial difficulties, and some children have to drop out of school because they have to bear heavy housework or even raise their brothers and sisters too early. In the investigation of the children of prisoners, the relevant data show that the family economic status of prisoners has a great influence on the study of minor children, with 19.2% of prisoners' children dropping out of school, 14.4% of families providing them with study, and 66.4% holding the idea of taking it one step at a time; Among the nearly 400 people surveyed, 76 children have dropped out of school, and it is possible to drop out of school after graduating from primary school or junior high school.
200 1 the child of a prisoner in Chengde prison wrote a letter to the prison police, telling them that her father's crime not only made her bear the burden of her family prematurely, but also lost the opportunity to go to school and faced dropping out of school. He begged the prison officer to let her father go home early so that she could study. Such a letter attracted the attention of prison leaders, and held a "helping students to teach" activity, and prison guards donated money to help these children go to school. At the same time, the "Love Relay Project" of Chengde Youth League Committee is also helping the children of prisoners with family difficulties. In addition, many prisons, such as Nanyang Prison in Henan Province and Tiebei Prison in Changchun, Jilin Province, have set up student aid funds to help the children of prisoners return to school. Many social organizations have also carried out many such activities to help these children facing difficulties, such as the Children's Village in Shunyi, Beijing, and the "Sunshine Action" of Jiangxi Charity Federation.
For the education of the children of prisoners, it is simply unreliable and not a long-term solution to rely solely on the funding of prisons and society. This problem is directly in front of us.
Third, the solution and discussion of the problem
In some countries in Europe and America, if the children of people sentenced to prison are underage, there are generally two ways to solve the problem of children. One is to set up mother-child prisons, such as Germany. For mothers who commit crimes, they can take their young children to prison to serve their sentences. The prison has a special room where mother and son live together and a special primary school to ensure that children serving sentences with their mothers can receive normal school education. Second, before the court convicted the parents, they had arranged their minor children to institutions such as the Children's Welfare Department and the Juvenile Home or families willing to adopt them through other channels.
At present, China's laws to protect minors are not as sound and perfect as some developed countries, and there are still some shortcomings in the formulation and implementation of laws. Therefore, the protection of minor children of prisoners in China has not yet reached the statutory stage, and the practical experience is not as advanced and rich as some countries. Under the current legal situation in our country, the author briefly discusses the solution of the guardianship and education of the minor children of prisoners.
(1) Countermeasures for supervising minor children of prisoners.
Article 16 of the General Principles of Civil Law stipulates that if a minor's parents die or have no guardianship, the guardian shall be the person with guardianship among the following persons: (1) grandparents; (2) brothers and sisters; (three) other close relatives and friends are willing to assume the responsibility of guardianship, with the consent of the unit where the minor's parents work or the residents' committee or villagers' committee of the minor's domicile. If there is any dispute about being a guardian, it shall be designated by the unit where the minor's parents belong or the residents' committee or villagers' committee where the minor's near relatives live. If a lawsuit is filed against the designation, it shall be ruled by the people's court. If there is no such guardian, the unit where the minor's parents belong or the residents' committee, villagers' committee or civil affairs department of the minor's domicile shall act as the guardian.
Article 12 of the Law on the Protection of Minors stipulates that if parents or other guardians fail to perform their guardianship duties or infringe on the legitimate rights and interests of minors under guardianship, and fail to change after education, the people's court may revoke their guardianship qualification upon the application of the relevant personnel or units; In accordance with the provisions of Article 16 of the General Principles of the Civil Law, the guardian shall be determined separately.
According to the above legal provisions, the author suggests:
1, improve the national guardianship system. The child rescue system in some foreign countries is based on the perfect guardianship system, but the guardianship system in China is still not perfect, with many shortcomings, and the legislation is not standardized or lacking. Therefore, China should improve the national guardianship system as soon as possible and formulate corresponding and operable legal provisions. For minors whose parents have been punished, if there is no other person with guardianship qualification to undertake guardianship duties, they should be supervised by the state guardianship agency, so that children from these special families can enjoy equal rights to survival and study like children from normal families.
At present, China's national guardianship institution is a children's welfare home, but the scope of reception of children's welfare homes is only orphans, disabled children and abandoned babies who can't find their parents, and they don't accept children of prisoners. The author thinks that the functions of children's welfare homes should be strengthened and expanded, and children's welfare homes should accept all guardians who are in the state of death or loss of guardianship of their parents or unable to perform their guardianship duties due to objective reasons and have no other legal provisions.
2, the people's court before or at the same time, the parents were sentenced to punishment, according to different circumstances, designated children foster care or guardian. In judicial practice, when the people's court makes a guilty verdict on parents, it should consider the future life and custody rights of minor children. For those who have served short-term imprisonment, in accordance with the order stipulated in Article 16 of the General Principles of the Civil Law, other persons with guardianship ability and qualification shall be appointed as guardians. Those who serve a long sentence are deemed to have no guardianship; Parents who commit crimes against their children's rights and interests shall be deprived of their guardianship qualification according to Article 12 of the Law on the Protection of Minors. In these two cases, which are regarded as incapable of guardianship and deprived of guardianship qualification, other persons with guardianship ability and qualification shall be appointed as guardians to perform guardianship duties for their children in accordance with the provisions of Article 16 of the General Principles of Civil Law. If there is no guardian prescribed by law, the civil affairs department shall act as the guardian and perform the guardianship duties. This will not only punish criminals, but also ensure that children will not be left unsupervised because their parents are in prison.
3. Develop the foster care system. Foster care refers to a kind of entrusted foster care behavior in which parents cannot directly fulfill their obligations of raising their children for special reasons and entrust their children to live in other people's homes. Foster care is not a legal system, and our laws do not directly stipulate the foster care system. Children of minors whose parents are serving sentences can be fostered to families willing to raise them, and foster families will take care of, protect, manage and educate them. Foster families should meet certain conditions, such as having a certain economic foundation, stable family structure, physical and mental health, voluntary raising, ensuring that the fostered person is not abused or infringes on the other legitimate rights and interests of the fostered person, and regularly reporting the living conditions of the fostered person. China should develop the foster care system, encourage more families to raise these children, and give the adoptive parents the necessary financial assistance. The foster care system in many foreign countries is very mature and standardized, which directly benefits children and is worth learning from.
4. The state and society should encourage and support qualified individuals or organizations to establish institutions to protect and raise children of criminals. Some prisoners' children live in neighborhood committees and village committees because their relatives are unwilling to raise them, and some are sent to specialized institutions such as children's villages. In recent years, some schools or organizations have been established to receive, train and protect the children of criminals, such as china charity federation Special Children's Village in Shunyi, Beijing, and Shan 'en Garden in Minhou, Fuzhou. These institutions are run by the people, but they also face many difficulties and challenges. For example, without legal status and financial support, it is difficult to solve the problem of children going to school, but it does provide great help to these unattended children. We can encourage the establishment of more such institutions and standardize their management and operation. On the one hand, it can help more children, ensure their life and study, and prevent them from committing crimes. On the other hand, it can also reduce the burden on the country.
(2) To solve the education problem of minor children of criminals.
1. The state should set up a special education fund to help these special children. The prison where parents serve their sentences, the village committee, neighborhood committee or minor protection organization in their place of residence shall issue a certificate of their parents' prison term, family status and economic status, and submit a written application to the higher education administrative department of the school where they attend, so they can get the support from the special fund.
In addition, regarding grants, primary schools in cities and towns and most rural areas in China have not yet been established. For students with financial difficulties, it is generally solved by reducing and exempting miscellaneous fees. In my opinion, primary schools in rural areas or other economically backward areas should set up grants so that every poor student can enjoy the treatment of grants.
2. According to the actual situation, the school will reduce the educational expenses of the children of prisoners with financial difficulties. China's current system is to exempt students who receive compulsory education from tuition fees (Article 10 of the Compulsory Education Law) and to reduce and exempt miscellaneous fees for students with financial difficulties (Article 17 of the Detailed Rules for the Implementation of Compulsory Education Law). This provides a basis and guarantee for us to solve the problem that some children of prisoners cannot receive compulsory education because of financial difficulties caused by their parents serving their sentences. However, children of prisoners with family difficulties who are minors and are receiving high school education should also enjoy this treatment.
3. Education administrative departments and school teachers should give special care to the enrollment and education of children raised by welfare institutions and some institutions that take in and raise children with social difficulties, lower the conditions, enroll in schools nearby, treat them fairly, and avoid discrimination and tuition fees and other educational expenses.
(3) Establishing a system of economic assistance for minors to provide social assistance and welfare protection for minor children of criminals.
As a special group, the minor children of prisoners, our government has no special relief institutions and policies at present. There is a vacuum between the state and society in helping these groups. The work of prisons is to educate and reform prisoners, but it does not extend to protecting the rights and interests of prisoners' children. Children's welfare homes mainly help orphans, disabled children and abandoned babies, and the protection and assistance of minor children of prisoners are not included in their duties.
The current assistance system for minors in China is not perfect, and the Law on the Protection of Minors and other laws also lack the protection of children's welfare. The United Nations Convention on the Rights of the Child stipulates that children have four basic rights: the right to survival, the right to protection, the right to development and the right to participation. Many foreign countries have established independent child assistance systems and formulated child welfare laws or relief laws to provide welfare protection for the realization of children's rights. Children's welfare institutions and other specialized children's institutions take urgent measures to protect and help children whose parents are in prison. Our country should set up an independent minor assistance system as soon as possible, formulate a minor welfare policy, and provide state assistance to the minor children of prisoners in order to solve the economic difficulties caused by their parents serving their sentences. The way of assistance can be to give a certain amount of living allowance to the economically disadvantaged minors whose parents or one of them is serving a sentence, and the amount of the allowance can be determined with reference to the local minimum living standard. After parents are released from prison, they can stop hair according to the actual economic situation. This can not only solve the family financial difficulties of the children of prisoners, but also alleviate the difficulties brought by the elderly grandparents, and also relieve the concerns of relatives or foster families who are willing to raise them, so that the lives and studies of these children can be guaranteed to a certain extent.