On the afternoon of 19th February, 2022, the 2022 Working Conference and "Seminar on Issues of Criminal Laws and Regulations on Violation of the Rights and Interests of Women and Children" hosted by the Committee of Commercial Crime Prevention and Defence of Beijing Lawyers' Association was successfully held in Beijing. Liang Yali, senior partner of King & Capital Law Firm, director of King & Capital Criminal Defence Research Centre, and Li Rong, lawyer of King & Capital Law Firm, were invited to participate in this meeting.
First, as a speaker, Lawyer Liang Yali explored the feasible path for the protection of women's and children's rights and interests from the perspective of a combination of empirical research and sociological research.
Lawyer Liang pointed out that the confrontation over whether to "maintain" or "increase" the penalty is mainly about whether the empirical law has adequately assessed the "evil" of the act of acquisition, but in fact, the concurrent penalty provisions in Article 241 of the Criminal Law and below do not have an effective effect on the act of acquisition. However, the concurrent penalty provisions of article 241 (1) and below of the Criminal Law do not provide effective criminal sanctions for the act of buying.
In fact, "buying a trafficked woman" is tantamount to "buying a daughter-in-law", and the likelihood that the woman will be sexually assaulted or detained in the subsequent marriage or childbearing process is extremely high, but it is very difficult to convict and punish her through a strict judicial process. This misalignment between the law and the facts stems from the fact that the legislation wrongly summarises and covers the scope of the facts corresponding to this offence. The legislation separates the evaluation of the act of purchase from subsequent violations, resulting in the hollowing out of the act of purchase to a monetary transaction of human dignity, ignoring the fact that the act of purchase itself poses an imminent danger of violation of a range of legal rights and interests, but the current statutory penalties are set so low that even this danger cannot be evaluated.
Liang Yali believes that the call for legislative amendment does not lie in changing the maximum sentence figure, but rather in clarifying, through scientific legislation, the nature of the offence of buying and the relationship between buying and other felonies, so that the evaluation of the criminal law on buying is truly comparable to the reality of the national situation, and so that the people's expectations of the legislation will not only be on paper, but will also be reflected in the life of the society.
Legislation should be cautious and prudent, and the scientific nature of legislation must be ensured as a prerequisite for deciding whether and how to amend the law on the basis of comprehensive and full justification of the necessity of amending the law as well as research and prejudgement of the practical effects that will be brought about by amending the law. Legislative amendments also need to rely on more precise, practical and multi-perspective research and judgement. Combined with empirical research and sociology of law studies, Article 241 of the Criminal Law is clearly out of touch with China's reality, and it is indeed necessary to amend the law.
In addition to amending the law, we should also explore feasible ways to protect the rights and interests of women and children from multiple perspectives:
1. Strengthening local governments and relevant departments to fulfil their responsibilities in cases of women's rights and interests being infringed upon;
2. Appoint guardians for abducted women and their children as soon as possible, and appoint professionals to report to the public security authorities the criminal offences suspected by the buyers;
3. Procuratorial organs should take action to safeguard the rights and interests of women and children through public interest litigation.
Finally, Liang Yali pointed out that to reduce trafficking and protect women's rights and interests, it is necessary to improve the modern level of governance, economic development, universal education to "treat the root causes"; through scientific legislation, fair justice, strict law enforcement and a variety of special actions to "treat the symptoms", only in this way can we hope to bridge the gap between ignorance and civilisation. Only in this way can we hope to fill the gulf between ignorance and civilisation.
Second, Li Rong lawyer as a commentator on the "no need to raise the buy trafficked women's criminal sentence" point of view of the evaluation.
Li Rong lawyer does not agree with "there is no need to raise the buy trafficked women's criminal sentence" point of view, that the current criminal legislation on the buy trafficked women and children's crime of criminal responsibility and punishment does not fit the problem, and the abduction and trafficking of women and children, the same infringement of women and children's right to liberty of person, and at the same time, the purchase of abduction and trafficking, and advocate for sale of the same punishment In order to reflect the justice and utilitarian value of punishment.
Whether or not there is goodwill in the act of buying, and whether or not there is an immediate need to buy in certain areas, does not diminish the criminal nature of the act of buying, which treats human beings as commodities to be bought and sold, and infringes on the right to liberty of person of the person who has been abducted and trafficked.
In this seminar, the participating lawyers actively discussed and shared their views on how to protect the rights and interests of women and children from being infringed at the legal level, and the seminar was conducted in a synchronised manner through "one speech, one comment", which enabled each lawyer's viewpoints to be fully discussed and demonstrated the enthusiasm and responsibility of criminal defence lawyers who are actively concerned about social issues and bear social responsibility. The enthusiasm and responsibility of criminal defence lawyers. Seminar held successfully, the lawyers through the discussion of hot issues in society, ideas have been expanded, professional knowledge has been improved, conducive to further commitment to the cause of criminal defence, to provide more professional, high-quality legal services for the rule of law to contribute to the construction of society.
