ZHANG Yong*

 

Abstract: Buying and selling abducted women or children are symmetrical crimes, but the “the same punishment for the same crime” is not applied. The focus of the criminal punishment for buying abducted women or children is not about increasing the statutory sentence, but strengthening judicial and law enforcement, to increase the prosecution rate and impose combined punishment for several crimes including the buying of abducted women or children and other subsequent crimes, so as to demonstrate the inevitability of criminal punishment. Human dignity is the core legal interest violated by the crime of buying abducted women or children. The specific legal interest is that humans are not for sale, which should be valued and protected independently in criminal law. This crime is a type of behavioral offense rather than a crime of circumstances. Under normal circumstances, neither the consent of the victim nor the goodwill of the purchaser excludes conviction of the crime. Compared with the crime of abducting and trafficking women or children, buying abducted women or children is not necessarily a serious crime, and the basic statutory punishment of less than three years is reasonable. However, it is possible to appropriately raise the sentence to less than five years in legislation.Where subsequent behaviors do not constitute a crime, they can be used as aggravating circumstances for the crime, and an aggravated statutory sentence can be configured to connect with the statutory punishments for the crime of abducting and trafficking women or children.

 

Keywords: same punishment for same crime · buying abducted women or children · human dignity · statutory sentence

 

 

The crimes of abducting and trafficking and buying women or children are serious crimes that infringe upon the personal rights and interests of women and children, cause serious harm to society and emotional damage to the public. The crime of human trafficking is a global problem. Many countries have a criminal code with severe punishments to combat the crimes. In the international community, they are regarded as a serious crimed with very serious criminal penalties.¹ Articles 240 and 241 of the Criminal Law of the People’s Republic of China stipulate the crime of abducting and trafficking in women or children, and the crime of buying abducted women or children, respectively. In 2015, the Standing Committee of the National People’s Congress introduced the Ninth Amendment to Criminal Law, modifying article 241, paragraph 6 by deleting the provision that those buying abducted women “may be exempted from being investigated for criminal responsibility.” This reflects China’s attitude toward punishing the crime of buying abducted women. In terms of judicial interpretation, the Ministry of Public Security issued Opinions on Issues concerning the Application of Laws and Policies in Combating the Crime of Abducting and Trafficking in Women and Children (hereinafter referred to as the Opinions of the Ministry of Public Security) in 2000; the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice issued the Opinions on Legally Punishing the Crime of Abducting and Trafficking in Women and Children (Fa Fa No.7 (2010), hereinafter referred to as the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice) in 2010; the Supreme People’s Court issued the Interpretation on Several Issues concerning the Application of Law in the Trial of Cases regarding Crimes of Trafficking in Women and Children (hereinafter referred to as the Interpretation of the Supreme People’s Court) in 2016. In terms of juridical practice, however, the punishment for the crime of buying abducted women or children is lighter compared with its counterpart — the crime of abducting and trafficking in women or children. The prosecution rates for the crime of buying abducted women or children are very low; moreover, the cumulative or combined punishment for several crimes is rarely given to those buying abducted women or children and illegally depriving the victims of their personal freedom or restricting their personal freedom, and/or forcing them to have sexual intercourse, and/or harming and humiliating the victims. Therefore, criminal punishment for this type of crime is ineffective. The recent incident of the chained women in Xuzhou who was found to be the mother of eight children has aroused widespread concern throughout society, and led to debates in the media and academic circle on whether to increase the statutory sentence for the crime of buying abducted women or children, and the need to raise public awareness that the “buyer’s market” provides the main incentive and environmental conditions for the trafficking of women and children. In this regard, proponents of “equal punishment” hold that buying and selling abducted women or children are homogeneous, symmetrical crimes (German: begegnungsdelikt, encounter offenses), and that the statutory sentences for the two crimes should be equivalent, hence the imposition of “equal punishment.” Some also advocate combining the two crimes into “the crime of abducting, trafficking or buying women or children”, hence the imposition of “equal punishment.” However, according to the opponents of this view, the fact that selling and buying are symmetrical does not mean they should be equally punished; and the main reason for ineffective anti-trafficking is not legislation, but judicial enforcement.² What is noticeable is that China is amending the Law on the Protection of Women’s Rights and Interests. In the draft amendment, one of the highlights is that Chapter VI “Rights Relating to the Person” is changed to “Rights and Interests Relating to the Person and Personal Dignity” to implement the Constitution’s requirement to protect women’s personal dignity. In the “two sessions,” NPC deputies and CPPCC members also put forward legislative proposals to amend the current criminal law and impose “equal punishment,” namely, equal criminal sentences for buying and selling women or children. In fact, criminal legislation and justice play an equally important role in punishing the crimes of buying and abducting and trafficking women or children. Both criminal legislation and criminal justice should be guided by the correct concepts of criminal law. What is the nature of legal interests violated by the crime of buying abducted women or children? Should the statutory penalties be increased? What is the legal basis? Without increasing the statutory penalties, can this type of crime be effectively punished by applying the current criminal law? How to improve punishment settings for relevant criminal charges? This paper explores the above questions.

 

 

Regarding whether the statutory sentence for the crime of buying abducted women or children should be increased, many scholars have come to the conclusion that buyers and sellers should be punished equally based on the symmetrical relationship between the crime of abducting and trafficking women or children and the crime of buying abducted women or children. Some scholars point out that Criminal Law provides equal punishments for symmetrical crimes, such as the illegal buying or selling firearms, or the buying or selling of counterfeit currency; however, there remains a huge difference in statutory punishment between the crimes of abducting and trafficking women or children and the crime of buying abducted women or children. The basic punishment for abducting and trafficking women or children is fixedterm imprisonment of not less than 5 years but not more than 10 years, while the basic punishment for buying abducted women or children is fixed-term imprisonment of not more than 3 years. The latter is given an evidently lighter punishment. To some extent, the crime of buying abducted women or children is committed with the connivance of such legislation that favors the buyers.³ Therefore, many proponents of equal punishments call for a revision of the Criminal Law to significantly increase the statutory sentence for buying abducted women or children, and making the penalty the same as that for the crime of abducting and trafficking women or children.⁴ Some scholars argue that the statutory penalty for buying abducted women or children should be appropriately increased, but it is not appropriate to apply the same punishment as that for the abducting and trafficking of women or children.⁵ Generally, this paper agrees with the latter view of point, and will deliver a detailed explanation of why below.

 

 

Symmetrical crimes (begegnungsdelikt) refer to crimes that involve the presence of two or more perpetrators acting and interacting with each other.⁶ Although there is a symmetrical relation between the two crimes, they do not count as a common crime, because they lack shared criminal intent of being accomplices.⁷ Generally speaking, the existence of a symmetrical relationship between two criminal offenses does not mean that the two offenses or acts in the same case constitute a crime, and it is possible to have only one party investigated for criminal responsibility. In practice, on the basis of affirming the symmetrical relationship between the two crimes of abducting and trafficking women or children and buying abductedwomen or children, should an “equal punishment” be imposed? Certainly, since the two are symmetrical crimes, it is necessary to treat them as a whole in terms of punishment and prevention, so both crimes should be given equally heavy penalties, and neither party should be ignored or neglected. If buyers of abducted women or children are given a much lighter penalty or even exempted from being investigated for criminal responsibility, it may lead to an increase in the abducting and trafficking of women or children. Therefore, special attention must be paid to the criminal punishment for buying abducted women or children, and the crimes of buying and selling women or children should be managed at source, so as to have a better effect on preventing the abducting and trafficking of women or children. In criminal legislation, while setting statutory sentences or actual sentences for these two symmetrical crimes, it is necessary to maintain a certain balance, namely, the sentences should be equally light or heavy for the two crimes. However, this does not mean setting the same statutory sentences for these two crimes, or convicting and imposing the sentences at the same time. In the sense of criminal law, the symmetrical relationship between the buying of abducted women or children and the abducting and trafficking of women or children carries certain significance, that is, due to the connectedness between the two criminal acts and their consequences, it is determined that in the same case, one party will be convicted and sentenced, using the nature and amount of the crime of the other party as reference.Some scholars argue that the crime of abducting and trafficking women or children and the crime of buying abducted women or children constitute two symmetrical crimes, but the penalties for the two are seriously imbalanced and do not conform to the basic theory related to symmetrical crimes.⁸ However, the symmetrical relationship between the two crimes of buying and selling does not lead to the conclusion that the statutory sentences for the two must be consistent. Fundamentally speaking, criminal law follows the principle of balance between crime and punishment, namely, in terms of the coordination between the amount of a certain crime and the severity of statutory punishment. To judge whether the statutory punishment for the crime of buying abducted women or children is too light and whether the punishment should be increased, fundamentally speaking, it should be based on the nature and amount of the crime. In most cases, buyers buy abducted women or children, subjectively, because they are driven by the traditional concept of marriage and family; and objectively, because they lack the conditions for getting married or starting a family. Thus, in terms of responsibility for their offense, the buyers deserve some forgiveness and compassion, and their crime involves less malice. If the buyer commits criminal acts afterwards such as illegally depriving the victims of their personal freedom or restricting their personal freedom, harming and humiliating the victims, forcing the victims to have sexual intercourse, and seriously infringing on the personal freedom, health and personal dignity of the abducted women or children, then the social harm the buyer causes and the punishment he or she deserves are no different from those committing the crime of abducting and trafficking in women or children. However, there is a substantial difference between the offenses of buying and trafficking in terms of social harm, specifically, the offense of buying causes less social harm than the offense of trafficking. Abduction and trafficking acts include the act of “abduction” and the purpose of “selling,” and the nature of this crime is more serious, as it leads to the loss of personal freedom and personal dignity of women or children; however, a buyer is the “successor” on the basis of the crime of abduction and trafficking, committing the crime in a passive manner. The fundamental reason for punishing buyers is that the criminal act of buying violates the legitimate rights and interests of women and children, and also that the punishment can inhibit the seller’s market to a certain extent; if the benefit from a “rechtsreflex” (legal reflex, or the indirect effects) realized by punishing the act of buying is used as the basis for evaluating the social harm caused by such acts, it would fundamentally contradict the principle of responsibility.⁹ From the perspective of the symmetrical relationship between buying and selling, the criminal act of buying only refers to the act of buying, with no indication of the more serious criminal acts afterwards such as illegally depriving the victim of freedom, forcing the victim to have sexual intercourse, harming and humiliating the victim. On the whole, the criminal act of buying is less serious in nature. In view of the difference in the degree of social harm between the two crimes, there is no need to just pursue the “same punishment” as if they are the same crime; if the statutory sentences for the two crimes are set with the same severity, it will be inconsistent with the principle of balancing the punishment with the crime. Bribery is a similar crime in the sense that there is a big difference in the nature of the criminal acts of offering and accepting a bribe, and the statutory sentences for the two criminal acts will not be completely equal. Even though the state’s judicial organs emphasize “equal punishment for the criminal acts of offering and accepting a bribe,” it actually tries to correct the previous misconception of justice that provides heavier punishment for the crime of accepting a bribe and lighter punishment for the crime of offering one; in the meantime, combating the crime of accepting a bribe is still the top priority of punishing the crime of bribery.¹⁰ It is worth noting that Article 241 of the Criminal Law originally stipulated: “Whoever buys an abducted woman or child but does not obstruct the woman from returning to her original place of residence as she wishes or does not maltreat the child nor obstruct his or her rescue may be exempted from being investigated for criminal responsibility.” This exemption clause largely sacrificed the severity and deterrence of punishment. For correction, the Ninth Amendment to Criminal Law has changed “exempted from being investigated for criminal responsibility” to “given a lighter punishment, or punishment may be commuted.” To a certain extent, this reflects the attitude of increasing punishment for the crime of buying abducted women or children. On the whole, however, the state still has a policy orientation of lenient punishment for the crime of buying abducted women or children, which is determined by the nature of the crime and the degree of harm it causes. Considering the recent situation of combating the crimes of abducting and trafficking women or children or buying abducted women or children, the legislature may consider increasing the punishment for the crime of buying abducted women or children, and appropriately raise the basic statutory sentences for the crime of buying to coordinate with that for the crime of abducting and trafficking in women or children; however, it would be inappropriate to provide equal punishment for the crime of buying as if it is the same as the crime of abducting and trafficking.

 

Therefore, we cannot “level out” the statutory sentences for the two symmetrical criminal acts whose nature and amount of crime are not equal simply for the purpose of the preventive criminal policy of “eliminating the source”; nor can we assume that as long as the statutory punishment for the crime of buying abducted women is raised, it will immediately curb the crimes of buying and selling women or children. In fact, the “heavy punishment” for the crime of buying abducted women or children is not reflected in the basic statutory sentences for the crime, but in the application of cumulative penalties for subsequent criminal acts. In practice, the criminal act of buying abducted women or children is most likely to be accompanied by illegally depriving the victim of freedom, forcing the victim into sexual intercourse, harming and humiliating the victim, and other serious criminal acts. In this case, since buyers will be punished for multiple crimes, the actual sentence will definitely be higher than the fixedterm imprisonment of less than three years, which may not show any big difference compared with the punishment for the crime of abducting and trafficking in women or children. In addition to the case of combined punishment for several crimes, there are also many cases where buyers and traffickers collude to abduct and traffic in women or children. If the perpetrator instigates or helps others to abduct and traffic in women or children for the purpose of buying women or children, on the basis of the principle of implicated offenses, he or she can be punished for the most serious criminal offenses committed; if a perpetrator participates in the abduction and trafficking of a woman or child and then buys the woman or child he or she has abducted, it would constitute the circumstance of converted criminal intent, and it should be handled in accordance with the principle of absorbable offenses, namely, more serious criminal offense absorbing the less serious offense.¹¹

 

 

From the perspective of the judicial application, many localities have always adopted a more lenient attitude toward the crime of buying abducted women or children. This is one of the reasons why the punishment for such crimes is relatively light and ineffective. An empirical analysis of the conviction and punishment of the crime of buying abducted women was conducted based on the data collected from the China Procuratorate Network (www.12309.gov.cn) and China Judgments Online (wenshu.court.gov.cn). Based on the analysis, the Proviso to Article 13 of the Criminal Law was widely invoked to achieve exculpations of criminal suspects or defendants in 136 non-prosecution agreements; suspended sentences and exemptions from criminal punishment were frequently applied in 568 guilty verdicts, showing a tendency for a high rate of acquittals and non-substantial penalties. In judicial practice, the conviction and sentencing for the crime of buying abducted women or children are relatively lenient, and lenient punishment is the main tendency in the criminal justice policy for this crime.¹² Using the China Judgments Online database (wenshu.court.gov.cn) and the Wolters Kluwer China Law & Reference database (law.wkinfo.com.cn), the author retrieved the first-instance criminal judgments for the crime of buying abducted women or children and the crime of abducting and trafficking in women or children from 2012 to 2021 (in order to avoid repeated statistics, this data does not include second-instance and retrial cases). As a result, there were 3,685 first-instance criminal cases involving the crime of abducting and trafficking in women or children, and 633 involving the crime of buying abducted women or children, so the number of criminal cases of abducting and trafficking is much higher than that of buying. The numbers of criminal cases of buying abducted women or children ovwe the past ten years are: 17 cases in 2021, 94 in 2020, 93 in 2019, 133 in 2018, 108 in 2017, 74 in 2016, 43 in 2015, 53 in 2014, 14 in 2013, and 4 in 2012. As shown in the diagram:

 

According to the above statistics, from 2012 to 2019, the number of court judgments regarding the crimes of buying abducted women or children increased year by year, showing an upward trend. After 2019, the number of such cases has shown a downward trend. Undoubtedly, in reality, there are a large number of victims suffering serious violations after being abducted, for example, being forced to have sexual intercourse, illegally deprived of freedom, harmed and humiliated. However, according to the statistical analysis of the crimes of buying abducted women based on 665 criminal judgment documents retrieved from the China Judgments Online database (wenshu.court.gov.cn), buyers were investigated for criminal responsibility and given combined punishment for several crimes in only 10.86 percent of the cases, showing a low rate of cumulative punishment. This also indicates the low prosecution rates of other serious crimes committed after buying abducted women.¹³ As for the underlying cause, the criminal violations against abducted women are difficult to be investigated for criminal responsibility due to the lack of evidence in the rural environments where such criminal acts are usually committed. The subsequent violations committed against the abducted women were buried under the previous minor offense of buying them, and given evidently light judicial punishment. The statistics also show that there are as many as 425 cases in which the buyers were given suspended sentences, indicating a high rate of suspended sentences (64.98 percent). One typical example is the case of Wang Shuai buying an abducted woman. In May 2014, with the help of others, the defendant Wang Shuai spent 20,000 yuan to buy a wife, namely, the victim Wang from the trafficker Kong. Since the victim Wang refused to live with Wang Shuai, Wang Shuai exchanged her for the victim Ao in July of the same year. Later, the victim Ao escaped and was rescued by the police. The court of Dingyuan County, Anhui Province, ruled that the perpetrator was exempt from criminal punishment given that the circumstances were minor. In this case, after the defendant Wang Shuai bought the abducted woman Wang, he returned her due to her resistance and made an exchange for the victim Ao. From the perspective of trade, Wang Shuai exchanged Wang for Ao, taking the victims as a commodity to “buy and sell” at will, violating the victims’ personal dignity; besides, it meant in effect he committed two independent crimes of buying abducted women. Thus, the nature of his crimes and the harm he had done were very serious, and the court’s decision to exempt him from any criminal punishment was unconvincing.¹⁴ If the criminal offenses of buying abducted women are always given lenient punishment and not effectively prosecuted, it is tantamount to condoning such offenses. Even if the legislation sets a heavy statutory sentence, it would be of no use.

 

In terms of judicial interpretation, the original Article 241 of the Criminal Law provided an exemption provision for the crime of buying abducted women or children. This incentive policy sacrificed the severity and deterrence of criminal punishment. This provision was supposed to provide room for judicial discretion, but it was mistaken as a signal of tolerance and enabled criminal acts of buying abducted women or children. The Ninth Amendment to Criminal Law has changed “exempted from being investigated for criminal responsibility” to “given a lighter punishment, or punishment may be commuted.” To a certain extent, this reflects the attitude of increasing punishment for the crime of buying abducted women or children; however, it still reflects a policy orientation of lenient punishment for the crime of buying abducted women or children.¹⁵ This judicial policy orientation based on the concept that “The law cannot be enforced when everyone is an offender” may also become an important reason for the ineffectiveness in combating the crime of buying abducted women or children. Under such circumstances, it is obviously useless to advocate an increase in the statutory sentence for the crime of buying abducted women, since it would not help curb such crimes. According to UK criminal law scholar Jeremy Bentham, punishment should be more severe if it is not more certain. However, when the profit of the offense is sufficient enough and the probability of being punished is small enough, no matter how severe the punishment is, it is difficult to deter such crimes.¹⁶ At present, the problem of ineffective punishment for the crime of buying abducted women or children is not in legislation, but in the judiciary and law enforcement, which is the consensus of many criminal law scholars. Rather than simply raising the statutory sentence and raising or lowering the threshold for conviction, it would be more realistic and more valuable to understand and handle the constituent elements of the crime of buying abducted women, and apply them in a timely and effective manner. The overemphasis on the severity of punishment leads to several concerns: first, it encourages the idea that punishment is a panacea; second, it would increase the inhumanity of punishment, which is not conducive to the implementation of modern criminal law; third, overemphasizing severe punishment will give people the wrong idea that legislative fault (lack of severe punishment) is the main cause of such crimes, without considering other factors such as the social circumstances. In some poor and backward areas in China, due to the influence of local feudal culture and local protectionism, it is very difficult to hold criminals accountable for crimes such as sexual assault, deprivation and restriction of personal freedom, insult and abuse in marriage and domestic settings. It should be recognized that this also contributes to the situation that the provision of combined punishment for multiple offenses in Article 241 of the Criminal Law is hardly applied. Many local civil affairs agencies have illegal administrative acts in marriage registration, which actually play a role in enabling the crime of buying abducted women. To be specific, some civil court judgments have shown that many abducted women’s divorce claims were rejected, and the marriages they entered into with the buyers were deemed legally valid. The legitimate and legal civil rights of abducted women are still not guaranteed, let alone their seeking protection and support in criminal justice.

 

To sum up, before trying to amend the current Criminal Law, we should first consider whether the criminal justice has fully utilized the criminal sentences provided by the current law, and whether it has reflected the timeliness and inevitability of punishment. As stated by Professor Che Hao, the key issue is never how severe the punishment is set down on paper, but the crime rates and the strength of law enforcement.¹⁷ To achieve “equal punishment” for the crimes of buying and abducting and trafficking in women or children, the key is not to increase the statutory sentence for the crime of buying abducted women or children, but to change the misunderstood concept of “focusing on cracking down on the traffickers rather than the buyers,” increase the prosecution rates, reduce the dark figure of crime (namely the amount of unreported or undiscovered crime), and strengthen the investigation of criminal responsibility for multiple crimes. For the crimes of buying abducted women and children and the crime of abducting and trafficking women or children, their conviction and sentencing can be different in severity; however, “equal punishment” for the two crimes does not mean “same punishment” as if they are the same crime. To achieve an optimal effect of punishment and prevention, it requires a balance between crime and punishment in terms of severity.

 

 

As mentioned above, China’s judicial practice has presented certain problems, such as the low prosecution rate for the crime of buying abducted women or children, the low rate of cases applying combined punishment for multiple crimes, and the high rate of cases applying suspended sentences. Regarding the underlying reasons, the judiciary and the public have an unclear understanding of the nature of legal interests in protecting abducted women and children. They do not pay enough attention to such interests; rather, they have mixed them with other legal interests that should be protected. To solve the judicial dilemma regarding the crimes of buying and abducting and trafficking in women or children, the key is to establish the concept of the legal protection of women and children’s personal dignity to guide criminal legislation and justice.

 

 

“Dignity” is at the center of modern human rights discourse and a concept that is hard to define precisely. Human dignity is the nobility and solemnity derived from the intrinsic value of each individual;¹⁸ personal dignity means that a person as a legal subject should be recognized and respected.¹⁹ Human dignity is more like a social value, while human dignity is a right in the legal sense. Article 38 of the Constitution provides that “The personal dignity of citizens of the People’s Republic of China shall not be violated”; and the Civil Code also clearly provides that the personal dignity of a natural person is protected by law, and no organization or individual may infringe upon another’s right to reputation by insulting, defamation, or the like. Personal dignity is the legal manifestation of human dignity. It is reflected in civil law as a basic constitutional right and known as the general right to dignity. At the same time, it supplements the legal interests of dignity that have not yet been classified. The term “personal dignity” is not explicitly stipulated in Criminal Law; however, but based on the unity of legal order, the legal interests of personal dignity established in the Constitution and the civil law should also become part of personal legal interests protected by criminal law.

 

Some scholars have pointed out that every human being should enjoy the right to freedom from slavery, and that this is the core of human dignity and freedom, and should be the core value of a social community. Buying and abducting and trafficking are the enslavement of women and children, also a violation of the core values of humanity as a whole. Whether the criminal responsibility for the crime of buying abducted women or children should be increased is not only a technical issue of criminal legislation, but also a constitutional issue concerning the core value system of the social community.²⁰ Buying abducted women or children violates the core values of society, which is not a minor crime; the crimes of buying and abducting and trafficking in persons have no difference in nature, and should not be treated differently. Naturally, the act of buying abducted persons should be punished severely. And does this discrimination between the two crimes sends the wrong signal, making people think that the crime of abducting and trafficking persons is more serious while the crime of buying persons is less serious? As mentioned above, the author does not fully agree with the conclusion that the same punishment should be provided for buying and selling abducted persons, but there is no way to deny that the current criminal sentences set for the crime of buying abducted women or children are still ineffective. At the same time, the author advocates that it should start from the foundation the legal interests protected by the Criminal Law, and examine the rationality and scientificity of the sentences set for the crimes of buying abducted women or children and the abducting and trafficking of women or children.

 

At present, Chinese criminal law scholars have different understandings of the legal interests involved in the crime of buying abducted women or children. Some scholars believe it is the personal freedom of abducted women or children; some believe it is personal dignity; some believe it should be both personal freedom and personal dignity; and some state it is personal freedom, life and physical security, and personal dignity. Some scholars believe that human dignity is not a basic constitutional right; rather, it is the basis of legal interests, not part of the legal interests to be protected from criminal violations.²¹ The author believes that, from the perspective of the nature of legal interests, human dignity is the legal interest to be protected in the crime of buying abducted women, which is the basic constitutional right reflected in criminal law. It is of legitimacy and purposiveness to identify the personal dignity of women and children as the protected legal interests involved in the crime of buying abducted women or children, and categorize it into the legal interests relating to the person. China’s Criminal Law lists the crime of buying abducted women or children in the chapter on crimes of infringing upon citizens’ rights of the person, which reflects the nature of legal interest involved in this crime stipulated by the Criminal Law, and also indicates the legislative spirit and purpose of Article 240 of the Criminal Law. Personal dignity is an abstract legal interest, and it is embodied in the specific legal interests involved in crimes against personal freedom, physical health, and sexual rights. Crimes against personal dignity are not limited to those currently provided in the Criminal Law, such as insulting, defamation and false accusation. At the same time, the abstract legal interests of personal dignity protected by criminal law need to be transformed into specific legal interests, namely, the core legal interest that humans are not for sale.

 

 

In terms of the protection of legal interests, the substantive purpose of prohibiting the crime of buying abducted women or children in China’s criminal law is to prohibit the sale of human beings as commodities, so the specific legal interest that humans are not for sale reflects the personal dignity of human beings. An abducted woman or child is a victim whose dignity is violated, and his or her dignity as a human being should be protected by the law. Such dignity is not limited to the legal interest that humans are not for sale, however, this should be a bottom-line interest that needs to be protected. The essence of the crime of abducting and trafficking women or children is women and children are treated as commodities denying their existence as human beings. As an objective element of the crime of abducting and trafficking in women or children, it must have characteristics to show how it actually infringes or threatens the dignity of others.²² “Trafficking (selling)” is the purpose of the crime of abducting and trafficking in women or children, which violates the legal interest that women and children as humans are not for sale; the offense of “abducting” violates the victim’s personal freedom, health and safety. Therefore, the object of the crime of abducting and trafficking in women or children is more complex, and its nature and harm are more serious compared with the crime of buying, so it is reasonable to set heavier statutory sentences for this crime. The act of “buying” is the core element of the crime of buying abducted women or children, and the object violated is simpler, namely, the legal interest that humans are not for sale. Criminal law should take the legal interest that humans are not for sale as the main object and provide independent protection, using it to identify the essential characteristics of the crime of buying abducted women or children, and distinguish it from other crimes of infringing upon citizen’s rights, so as to demonstrate the protection of the legal interests of personal dignity.

 

A scholar has made a simple comparison of the basic statutory sentences for the crime of buying abducted women and the crime of illegally buying endangered and rare animals, namely, which is less than three years versus less than five years. The punishment for buying persons is even lighter than that for buying animals, so he believed it is necessary to increase the statutory sentence for the crime of buying persons.²³ Not to mention whether such a conclusion is correct, the reason for its inference is obviously untenable, since the objects violated by the two crimes are completely different in nature. The essence of the crime of buying abducted women or children is to buy people as commodities, so it is a serious violation of personal dignity and is despised in modern civilization. Although the illegal acquisition of rare and endangered animals violates the state management system, it does not involve the “right of personality” and “dignity” of animals. It is not comparable between the personal interest of personality dignity and the state management system. Some argue that “abducting and trafficking” and “buying” do not constitute real trade, and such expressions in the terms of offenses are providing an excuse for the crimes, so they believe it is necessary to replace the original names of the crimes with “the crime of kidnapping and transferring control of women” and “the crime of accepting transferred control of women.”²⁴ The author believes that the description of the crimes with “trafficking” and “buying” in the criminal law does not mean that the sale of women and children is of the nature of commodity trade. As long as we identify that the legal interest that humans are not for sale is protected in the criminal law and categorize it as part of the rights and interests relating to personal dignity, there is no need to change the name of offenses to make a statement.

 

On the basis of clarifying the core legal interest protected in the crime of buying abducted women or children, we can further analyze the legal interests protected in this type of crime from the perspective of types. In criminal law, the constituent elements of a crime are the specific facts by type, which are derived from the types of crime, showing an open structure of types.²⁵ The abstractness and ambiguity of personal dignity determine that the legal interests protected in the crime of buying abducted women or children are not a static and closed concept, but a dynamic and open one. The core specific legal interest infringed upon by the act of buying is that humans are not for sale. At the same time, it also infringes on other specific legal interests under the category of personal dignity, such as the right to reputation, the right to privacy, and the freedom of personality. However, these legal interests are not included in the basic elements that constitute the crime of buying abducted women or children, which are used as variables affecting the conviction and sentencing of this type of crime. In different criminal cases of buying abducted women or children, there are differences in whether other specific legal interests other than the one that humans are not for sale have been violated and the extent of the harm being done, and the dynamics between 

the varied legal interests are also changing. So, such variables tend to play a more practical and important role in determining criminal responsibility for the crime of buying abducted women or children. Since behavioral offenses are also measured by the severity of the harm being done, the above variables can be used as the factors for determining the amount of crime under the circumstances of an essential offense; if the aggravated offense is to be stipulated in legislation in the future, they can be used as the factors for determining the amount of crime under the circumstances of an aggravated offense. The legal interest that humans are not for sale is also abstract and ambiguous, so the severity of social harm being done by the crimes violating such legal interest needs to be measured with the actual violation of personal legal interests reflected by other variables. Where the act of buying abducted women or children not only infringes on the core legal interest that humans are not for sale, but also infringes on other legal interests of personality, personal freedom, physical health and even the right to life, if it does not constitute a crime, such violations of legal interests can be used as the circumstances for the conviction and sentencing of the crime of buying abducted women or children; if it does constitute a crime, these violations should not be convicted as part of the crime of buying abducted women or children, but as other crimes, which means combined punishment for multiple crimes.

 

 

In terms of the nature of legal interests, the acts of buying abducted women or children and abducting and trafficking women or children are both violations of the personal dignity of abducted women or children, and should be punished by criminal law. The only difference between the two crimes lies in the way how the legal rights and interests of personal dignity are violated. As for the huge difference in basic statutory sentences between the two crimes, the act of abducting and trafficking women or children violates not only the legal interest that humans are not for sale, but also other legal interests such as personal freedom and physical health; however, the act of buying only violates the one legal interest that humans are not for sale, without violating other legal interests such as personal freedom or physical health. In this sense, the protection of legal interests relating to personal dignity should be specially and independently reflected in the Criminal Law. In practice, the act of buying does not necessarily lead to a violation of the personal freedom of the victim, for example, in the cases where the abducted women are voluntarily “bought” and choose to live with their buyers, and the buyers do not illegally deprive them of freedom.²⁶ It is very natural that the acts after buying may actually compromise the personal freedom, health and safety of the victim. According to Article 241 of the Criminal Law, as long as the perpetrator commits the act of buying an abducted woman or child, and seriously violates the victim’s dignity, it constitutes a crime. Whoever commits other criminal acts, such as illegally depriving the victim of freedom or harming the victim, shall be convicted of other crimes and given combined punishment for several crimes. This is consistent with Article 241, paragraph 4, of the Criminal Law, namely, the provisions on combined punishment for several crimes. From the perspective of legal interests, the personal freedom of the abducted people is not violated at the time of the purchase, but at the time of being abducted. If the protected legal interests involved in the crime of buying abducted women or children include personal freedom, then the illegal deprivation of the victim’s freedom after the buying is also within the scope of the constituent elements of this crime, then there would be no other crimes that lead to combined punishment. This then conflicts with the provisions of Article 241, paragraph 4, of the Criminal Law.

 

 

 

In terms of international law, human trafficking is an international crime. According to Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, “Trafficking in persons” is for the purpose of exploitation, such as forced marriage, illegal deprivation of freedom, sexual exploitation and forced pregnancy, which seriously violate personal dignity and freedom of women. China ratified the Protocol in 2009. Some scholars argue that buying abducted women is in line with the elements of “trafficking in persons,” and the act of buying and acts afterwards can be collectively referred to as “the crime of slavery,” and they advocate that buying abducted women should be regarded as a preparatory offense for the crime of slavery, and should be given a heavier statutory sentence.²⁷However, the crime of abducting and trafficking in women or children stipulated in the Chinese Criminal Law is far from the definition of “trafficking in persons” in the Protocol, which should not be excessively interpreted.

 

Paragraph 1 of Article 241 of the Criminal Law gives a simple description of the crime and stipulates the basic elements of the crime of buying abducted women or children, as well as thestatutory sentences. The perpetrator will be convicted of the crime as long as he or she commits the act of buying an abducted woman or child. Judging from the essence and behavioral characteristics of the act of buying abducted women or children, the basic offense of the crime does not belong to the offense of criminal damage, circumstance crime or consequential crime, and it is preferable to define it as a behavioral offense. It should be pointed out that, the act of buying abducted women or children is bound to be accompanied by serious criminal acts that are given heavy statutory penalties. In terms of legal interests, the protected legal interest involved in this crime is the personal dignity of abducted women or children. The legal interests violated by such criminal acts afterwards as illegally depriving the victim of freedom, forcing the victim to have sexual intercourse and harming the victim are not protected by the provisions regarding the crime of buying, and such criminal acts shall be convicted and punished in accordance with the provisions on combined punishment for several crimes as provided in Paragraph 4 of Article 241 of the Criminal Law. As pointed out by a scholar, the dependent consequences, the incidental consequences or the similar consequences after the act of buying can be used as the circumstances for sentencing; other aggravating consequences often need to be evaluated separately.²⁸ It is not appropriate to overly interpret the constituent elements of this crime, namely, this crime does not involve the criminal acts afterwards such as forcing the victim to have sexual intercourse, illegally depriving the victim of freedom, or harming the victim. Otherwise, it will easily blur the boundaries between this crime and other related crimes committed, which is not conducive to the specialized and independent protection of the legal interests of personal dignity.

 

Some scholars argue that the severity of punishment for the crime of buying abducted women should not be judged merely based on its basic statutory sentence; comprehensively speaking, considering all the provisions in Article 241 of the Criminal Law, the punishment is severe enough for a major crime. The preceding act of buying can be regarded as a preparatory offense for the heavy offenses afterwards, and a comprehensive evaluation of the act of buying and the heavy offenses will result in very severe sentencing, so there is no need to increase the statutory sentence for the crime of buying.²⁹ This paper does not agree with this view and its rationale. First of all, since the crime of buying abducted women is established as a crime in China’s Criminal Law, and evaluated as an independent violation of legal interests, it should not be regarded as a preparatory offense for other crimes. Second, the view that this crime is a preparatory offense does not explain the circumstances in which the act of buying or acts afterwards does not constitute a crime. If it is determined that an act afterwards does not constitute a crime, the so-called preparatory offense is out of the question. In many cases, buyers take the abducted children as family, treat them as their own, and take good care of them. In such cases, there are no subsequent criminal acts, so it cannot be taken as a preparatory crime. Third, it is very difficult to prosecute subsequent criminal acts due to lack of evidence; especially in remote and rural environments, it is almost impossible to investigate criminal acts such as forced sexual intercourse and illegal deprivation of freedom in marriage and family settings. Finally, Article 241 of the Criminal Law stipulates the act of buying as a crime. If it is again stipulated as a preparatory crime, according to the basic principles of criminal law, criminal punishment is an exception to the preparatory crime. If the act of buying abducted women or children is regarded as a preparatory crime, and the principle of “exception” is adopted, it is easy to condone such crimes, which actually increases the difficulty of investigating and punishing such crimes. Some believe that the act of buying abducted women should be considered an offense of criminal damage, rather than a preparatory offense, because buying an abducted woman usually leads to the risk of subsequent heavy offenses³⁰. This view also lacks legal basis; and in practice, it is more difficult to prove and prosecute an offense of criminal damage than a behavioral offense, which is obviously not conducive to combating the crime of buying abducted women. Under the premise of defining the crime of buying abducted women as a behavioral offense, the statutory sentence of less than three years (a minor crime) cannot be regarded as a light one, because it would be easily convicted as long as there is a buying behavior. Of course, in a behavioral offense, it is also necessary to evaluate the harm being done. For example, in the case where the perpetrator buys an abducted woman but lets her go because the victim resists the arrangement, without actually violating the personal freedom of the abducted woman, the harm being done is not serious, so it would be inappropriate to find him guilty of the crime of buying an abducted women.

 

 

Article 20 of the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice (2010) enumerates seven circumstances lead to beingconvicted of the crime of buying abducted women, and provides a detailed explanation of the crime as a circumstance offense. According to the provisions of this article, knowingly buying an abducted woman or child, with serious circumstances, shall be convicted and punished as the crime of buying an abducted woman or child. Simply buying an abducted woman does not constitute a crime, as more circumstances are added, such as serious circumstances like hindering the rescue of the victim, depriving of or restricting the victim’s freedom, the number of purchases and people purchased, the severity of the harm being done to the victim. The problem is that if these circumstances cannot be identified as other crimes, they can only be used as the convicting circumstances of the basic crime of buying abducted women. This actually increases the difficulty in judicial determination of the crime and the investigation for criminal responsibility of the buyer. The author believes that the above judicial interpretation, identifying this crime as a circumstance offense rather than a behavioral offense, actually raises the threshold for conviction, which is an important reason why the statutory sentence for the crime of buying abducted women is considered to be “light.” According to the provisions of the above judicial interpretation, if the perpetrator commits any acts that fit the serious circumstances listed and constitute other crimes at the same time, he or she shall be punished according to the provisions on combined punishment for several crimes; and these circumstances are used as the elements to convict the crime of buying abducted women or children, which will lead to the problem of repeated conviction in criminal law. If they are only used as an element to convict other subsequent criminal acts, then the buying behavior cannot be identified as a crime due to the lack of circumstancial elements. When faced with such a dilemma, the judiciary may stop prosecuting the crime of buying abducted women or children, and only try to prosecute other more serious crimes, which will lead to the problem of condoning the crime of buying abducted women or children.

 

From the perspective of legal interests, the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice (2010) regard the crime of buying abducted women or children as a circumstance offense, mix the legal interest that humans are not for sale with other legal interests, and treat the single legal interest relating to the basic offense as complex legal interest. This obscures the protected legal interest relating to this crime, making this core legal interest a secondary one, namely, this legal interest seems of little importance compared with other legal interests violated by more serious crimes such as forced sexual intercourse and intentional assault. Therefore, it is imperative to make necessary amendments to the above-mentioned judicial interpretations and restore the nature of the crime rather than considering the amendment to the legislation by increasing the statutory sentence. In terms of the statute of limitations, if the crime of buying abducted women or children is understood as a behavioral offense crime or a state offense (zustandsdelikte), the criminal act ends with the completion of purchase, after which it is just a continuation of illegal state, and the statute of limitations shall be calculated from the date when the act ends; if the crime is considered as a continuing offence, then the subsequent acts after a perpetrator buys an abducted woman such as illegally depriving the victim of freedom will not be convicted separately, which clearly conflicts with the provisions in paragraphs 3 and 4 in Article 241 of the Criminal Law. It should be pointed out that the criminal act of buying abducted women or children being identified as a behavioral offense does not cause the problem of enabling the crime due to the low statutory sentence or the short statute of limitations. In most cases, a buyer will commit other criminal acts such as illegal deprivation of the victim’s freedom after buying an abducted woman or child; the criminal act of illegal deprivation of freedom is a continuing offense, and the statute of limitations is calculated from the day the woman is released. In addition, whoever continues to raise an abducted child after buying the child shall be convicted of the crime of child abduction. Even if the perpetrator does not illegally detain the child, he or she shall be convicted of the crime as long as the child is kept out of parental custody; the criminal act of child abduction is a continuing offense, and the statute of limitations begins when the child is abducted, so it is not difficult to prosecute.³¹

 

 

 

In the judicial field, the right to self-determination is most related to the general right to personal dignity.³² If the right holder allows others to commit acts that damage his or her rights and interests based on his or her own decision and is willing to bear the corresponding consequences, it will exempt the other party from legal responsibility for infringement. What needs to be discussed is that in the field of criminal law, personal dignity belongs to personal legal interests. Regarding this crime, can the promise of the victim prevent the conviction of the crime? Scholars have different views on this. Regarding the crime of buying abducted women or children, does the victim’s consent to being bought prevent the conviction of the crime? Some scholars believe that in order to respect the freedom of will, in principle, the commitment to giving up personal legal interests should be considered valid (except for major legal interests such as the legal interest of life, which cannot be given up). However, most scholars are opponents of this view. The author believes that, according to the basic theory of criminal law, the victim’s consent is not a legal justification, and the victim’s consent alone cannot be cause for exculpation, but it can be used as a basis for mitigating or exempting punishment. In the case of the victim’s consent, only if the act of buying conforms to the provision of “if the circumstances are obviously minor” stipulated in Article 13 of the Criminal Law, can it be exempted from criminal responsibility. For example, the mother of the trafficked woman Pan (Vietnamese) asked Party A to help find a Chinese husband for her daughter. With the help of Party A, the buyer Zhang, paid 23,000 yuan to marry Pan and took her home. Later, Pan was about to be sent back to her country by the policy. She told the police she was willing to be Zhang’s wife and did not agree to return to Vietnam. The court ruled that Party A’s act constituted the crime of trafficking in women, while Zhang’s act constituted the crime of buying trafficked women.³³ In this case, the abducted person clearly understood her situation of being sold as a wife and agreed to be the buyer’s wife; and it was even true that she also got along well with the buyer and voluntarily returned to the buyer after being rescued by the police. This fully demonstrates the existence of real and effective consent of abducted women, indicating minor social harm. Under such circumstances, the perpetrators should not be convicted of the crime. But this is not because the victim’s consent justifies the act of buying, but because the buyer carries a low level of malice, and it lacks the necessity to apply punishment.

 

In practice, there are often cases of introduced marriages, mercenary marriages, and arranged marriages. Some argue that a woman’s will does not constitute an element for convicting the act committed in an introduced marriage as the crime of trafficking in women, namely, even if the woman is willing or consents to be sold as a wife, the trafficker will still be convicted with the crime of trafficking in women.³⁴ As for whether the women’s will should be used as an element for the conviction of the crime of buying abducted women, the author believes that it needs to be comprehensively considered in combination with the subjective elements of the crime of trafficking in women. From paragraph 2 of article 240 of the Criminal Law, it does not explicitly stipulate the women’s will as an element for convicting the crime of trafficking in women; however, the acts such as abducting, kidnapping, buying, trafficking in, fetching, sending, or transferring mentioned in the provisions have reflected the abducted women’s situation, namely, losing control of themselves. Therefore, both the acts of selling and buying the control of abducted women are essentially against their will. According to Paragraph 1 of Article 3 of the Interpretation of the Supreme People’s Court (2016), whoever sells women to others against their shall be convicted of the crime of abducting and trafficking in women.³⁵ By inference, the buyer shall certainly be convicted of the crime of buying abducted women. Generally speaking, as long as a perpetrator buys an abducted woman from a trafficker, and knows that the victim is abducted and trafficked, it can be presumed that the act of buying is against the woman’s will.

 

 

It has been argued that the law severely punishes the crime of buying abducted women or children, without implicating the buyers in “good faith.”³⁶ If the buyer allows the woman to leave on her own, the buyer is not deemed to violate criminal law. If an abducted woman voluntarily marries the buyer, the buyer is not deemed to run afoul of criminal law. If the purpose of the buyer is to rescue the victim, instead of violating criminal law, the buyer should be rewarded.³⁷ The author believes that the fact that the buyer acts in “good faith” is not enough to eliminate the criminality of the buying. In other words, the “good faith” of the buyer alone is not enough to eliminate the criminality of the act of buying abducted women or children. In criminal law, the “good faith” or “bad faith” of the perpetrator is generally regarded as a criminal motive, and the motive is not a constituent in most crimes, but is only considered a factor in sentencing. In the case of trafficking in women, as long as there is sufficient evidence to prove that it is an act of buying and selling, it is a crime even if the trafficked woman herself agrees. This concerns human dignity in general. Individual citizens have no freedom to buy and sell themselves, or sell themselves into slavery. Therefore, even if the buyer is “in good faith,” the act should be treated as a crime. At best “good faith” is a factor in sentencing. In practice, it is difficult to judge whether the buyer is “in good faith” or not, and it also easily changes in the process of committing a criminal act. Therefore, it can only be used as a variable in sentencing. If the buyer acts in “good faith” and takes positive measures after the buying to remedy and restore the damage of legal interest caused to the human dignity of the victim, it may serve as a basis for mitigating or exempting criminal liability, but cannot eliminate criminality.

 

In the case of “buying in good faith,” the buyer’s subjective motives of good or bad faith must be taken into account while considering whether the act has caused substantial harm to the human dignity of the abducted women or children, so as not to consider it a crime through the comprehensive judgment in accordance with the provisions of the proviso article 13 of the Criminal Law. Only in cases where the violation of human dignity is significantly minor can it be possible to exempt the buyer from criminal responsibility due to “buying in good faith.” Since the buying of abducted women may lead to de facto marriage and family relations, the judicial organs must not only punish the crimes of abduction and buying according to law, but also respect the true wishes of abducted women and avoid disrupting the families already established and their social life. Therefore, it is necessary to treat such acts differently, and to give lenient punishments in accordance with the law to those truly minor acts of buying abducted women.³⁸ In practice, there are also cases where the buyer lacks subjective guilt out of “good faith.” For example, the woman is indeed trafficked, but the trafficker withholds this fact from the buyer. The buyer unknowingly pays the trafficker to “buy a wife.” Afterwards the abducted woman expresses her disagreement with the marriage and informs the buyer that she has been trafficked and sold. The buyer then does not force her to stay, but releases her instead. In this case, the perpetrator shall also be considered innocent because of his lack of subjective guilt, but the marriage may be determined invalid in accordance with the Marriage Law. In addition, in the case of unofficial foster care out of “good faith,” it is often difficult to determine the nature of small amounts of “nutrition fees” and “thank-you fees.” According to article 10 of the Opinions, acts that are considered unofficial foster care cannot be punished as the crime of abducting and trafficking in women or children.³⁹ Then, of course, the perpetrator who agrees out of good faith to foster a child given by another person cannot be regarded as having committed the crime of buying an abducted child.⁴⁰ However, if the recipient does not at all intend to foster the child, and “gives” a huge amount of money to the other party in the name of a “nutrition fee” and “thank-you fee,” both parties shall be deemed to be guilty.

 

 

As mentioned above, those who advocate increasing the statutory sentences for the crime of buying abducted women or children believe that this is a symmetrical crime to the crime of abducting and trafficking in women or children, and so they should have the same sentences like similar symmetrical crimes. Therefore, they believe that it is necessary to significantly increase the statutory sentences for this crime through legislative amendments. However, there are different opinions among them. Some of them advocate that statutory sentences for this crime should be completely the same as those for the crime of abducting and trafficking in women or children, and, at maximum, the death penalty shall be applied to those circumstances that are particularly serious; some argue that the minimum statutory sentence should be set at imprisonment of more than five years or more than seven years; and some suggest that both the minimum and maximum statutory sentences should be set at the same time, at an imprisonment between three and seven years and five and ten years respectively, for instance.⁴¹ Some argue that “the crime of buying an abducted woman needs to be punished more strictly, but this doesn’t mean that the statutory sentences for the crime must be increased”; “it is more urgent and practical to amend the provision on the combined punishment for several crimes than to increase the statutory sentences for the crime”⁴²; others suggest amending Paragraph 1, Article 241 of the Criminal Law to include a clause for aggravated offenses with a higher aggravating statutory sentence, and, at the same time, add a clause on the combined treatment of several crimes that stipulates: “whoever commits the acts mentioned in the preceding paragraph(s) and at the same time (also) constitutes other crimes shall be sentenced in accordance with the provisions with heavier punishment.”⁴³ The author believes that we cannot conclude that the difference in statutory sentences between the two crimes is too large by simply analyzing and comparing the basic statutory sentences of the two crimes. If the act of buying is followed by serious circumstances such as infringing on the personal freedom, health and safety of abducted women and children, such circumstances should be punished in accordance with the provisions on the combined punishment for several crimes if they constitute a crime. As a result, the actual punishment imposed on the buyer may not be lighter than sentences for the crime of abducting and trafficking women or children. However, the premise for the combined punishment for several crimes is that subsequent acts must independently constitute a crime, so the establishment of the combined punishment for several crimes in Article 241 of the Criminal Law is a provision that needs attention. If subsequent acts of illegal detention, insult, beating, sexual assault, and injury committed by the buyer after buying an abducted woman do not constitute a crime, or do not conform to the circumstances of the combined punishment for several crimes stipulated in the judicial interpretation, the buyer will only be identified as the basic offense of the crime of buying abducted women or children and receive the statutory sentence of no more than three years. Therefore, the law obviously lacks the criminal law evaluation on the subsequent acts. As can be seen, the main problem with the setting of sentences for the crime of buying abducted women or children is the lack of the levels of aggravated statutory sentence and as result a ladder of sentences from light to heavy is absent. Even if there are legal provisions on the combined punishment for several crimes, it is difficult for them to fill in the “gap” resulting from the fact that there are basic statutory sentences only and there aren’t clauses for aggravated offenses for the crime of buying abducted women.

 

In terms of foreign legislation, the criminal laws of many countries such as Germany and Japan have set different statutory sentence levels for different situations of buying and abducting women and children.⁴⁴ By referring to foreign legislation, this paper proposes the following legislative suggestions 

 

First of all, for those basic offenses of the crime of buying abducted women, the maximum statutory sentences in the current criminal law can be maintained and appropriately increased. Because they are offenses of infringing on human dignity only, it is not appropriate to significantly increase their statutory sentences. However, from the perspective of intensifying the punishment for the crime of buying abducted women, it is also feasible to appropriately increase their basic statutory sentences. The legislative organs may consider appropriately increasing the maximum statutory sentence for the crime of buying abducted women or children from an imprisonment of less than three years to less than five years, because the basic statutory sentence for the crime of abducting children is an imprisonment of less than five years. The crime of abducting children is a single act of abduction without selling, which is more or less the same as the crime of buying abducted women without selling them. Therefore, the statutory sentences for the two crimes should be roughly the same. What’s more, increasing the maximum statutory sentence for the basic offense of buying abducted women or children to an imprisonment of less than five years is logical because the minimum statutory sentence for the crime of abducting and trafficking women or children is more than five years. For example, a single act of buying an abducted child will receive a sentence of less than five years; while the buyer will receive a sentence of more than five years if the purpose of his/her buying act is abducting and selling. By doing so, we can achieve the coordination and linking of statutory sentences between the two symmetrical crimes.

 

Second, aggravated offenses can be set up for the crime of buying abducted women. The act of infringing on the victim’s personal dignity and other personal rights and interests after buying, which does not constitute a crime, can be regarded as an aggravating circumstance. The defect of the statutory sentence for the crime of buying abducted women or children lies in the statutory punishment does not provide for aggravating circumstances for grades of crimes. The statutory sentence for the crime of abducting and trafficking women or children is divided into three grades. The statutory sentence grades of the former and the latter do not match, which is inconsistent with their symmetrical relationship. Meanwhile, due to the difference in the proportion of crime between buying abducted women and abducting and trafficking in women or children, the former is smaller than the latter; and accordingly, the statutory punishment for aggravating circumstances of the former should also be lower than that of the latter; and so it is necessary to consider the aggravating circumstances and statutory punishment of the crime. The aggravating circumstances of the crime of buying abducted women or children may include the buying behavior and the subsequent serious violation of the personal rights and interests of abducted women and children, but should not include the circumstances in which the subsequent acts constitutes a crime (several crimes should be punished together). Therefore, its aggravated statutory sentences should not be set too high, and it can be set for more than three years but less than seven years; if the maximum statutory sentence for basic crimes is raised to five years, the aggravating statutory sentence can be set to be more than five years but less than ten years, which is equal to the basic statutory sentence for the crime of abducting and trafficking in women or children. Compared with the provisions of combined punishment for several crimes, the legislative model of aggravated offenses can be used to evaluate more comprehensively the crime of buying abducted women or children. For the subsequent forced sexual intercourse, intentional assault, illegal deprivation of freedom and other criminal acts committed by the buyer, the provisions on combined punishment for several crimes should be firmly applied; if the subsequent act does not constitute a crime, it should be severely punished by setting up a clause for aggravating circumstances. In this way, the statutory sentence grade and the crime punishment grade from light to heavy can be formed, ranging from the statutory punishment for the basic offenses and aggravated offenses of this crime to the combined punishment for other offenses. It can also match the basic and aggravated punishments for the crime of abducting and trafficking women or children, change the situation in which “the former is light and the latter is heavy,” reflect the balance of crime and punishment between symmetrical offenses, and coordinate the crime and punishment system with other crimes.

 

It must be pointed out that the most important problem is not increasing the statutory punishment for the crime of buying abducted women or children by revising legislation, but considering the establishment of the elements. of the crime of buying abducted women or children according to law and increasing the comprehensive criminal punishment for this crime and subsequent serious criminal acts at the level of criminal law application. At present, the crime of human trafficking is still serious. It is actually a “doctrine of severe punishment” abandoned by modern criminal law to blindly expect to curb the crime of trafficking in human beings by revising legislation and increasing statutory punishment. Through the application of the criminal charge of buying abducted women, the buyer can be investigated for criminal responsibility, which fully reflects the timeliness of criminal law and is more important than the severity of punishment. When necessary, the state judicial organs need to revise the existing judicial interpretation and restore the essential attribute of the crime of buying abducted women as a behavioral offense. In this way, it can not only make the the statutory punishment match the nature and proportion of the crime, but also effectively reduce the difficulty of the judicial organs in identifying the crime, improving the strength and precision of the crackdown on buying behavior, and realizing the “equal punishment” for trafficking and buying.

 

 

As some scholars have pointed out, the emergence and prevalence of the crime of buying abducted women or children is not only caused by the individual buyer, but also caused by poverty and relative deprivation, gender imbalance and ignorance, all of which are social factors that trigger the crime of buying.⁴⁵ Cracking down on the buyer’s market for trafficking in women and children and strengthening criminal punishment for buying are clearly stated in China’s Action Plan against Human Trafficking (2021-2030). But, “The law alone is not enough.” To punish the crimes of abducting, trafficking in and buying women or children, the most convenient countermeasure is to reduce the number of crimes through the severity of punishment, the most effective countermeasure is to increase the certainty of punishment, and the most fundamental countermeasure is to prevent crimes from happening. We must improve and reform corresponding social policies, publicize the equality of personal dignity between men and women, and establish the public’s concept of modern civilization. Of course, the crimes of abducting women or children and the the buying of abducted and trafficked women and China cannot be solved at one stroke. They can only be addressed in a long process. Even if social policies are improved, crimes cannot be eliminated completely. All countermeasures can only control crimes within the range that society can tolerate. The bottom line of protecting the personal dignity of women and children lies in judicial enforcement. The punishment does not need to be heavy, but needs to be present.

 

(Translated by CHANG Guohua)

 

* ZHANG Yong ( 张勇 ), Professor, Criminal Justice College, East China University of Political Science and Law.

 

1. The international conventions regarding the suppression of the traffic in women or children include the International Convention for the Suppression of the Traffic in Women and Children (1921) and its modified version based on the Protocol adopted by the General Assembly in 1947, the International Convention for the Suppression of the Traffic in Women of Full Age (1933), the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1951), the Convention on the Rights of the Child(1990), the United Nations Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000).

 

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6. Hitoshi Otsuka. Generality of Criminal Law, translated by Feng Jun (Beijing: China Renmin University Press, 2009, 3rd edition), 270.

 

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10. Zhang Yong, “Equal Punishment for Offering and Accepting a Bribe: The Rationale and Models of the Criminal Policy,” Law Science 12 (2017)：62.

 

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13. Xiaobaogong, “665 Court Judgments Tell Us Whether Sentence Should Be Increased: An Empirical Study on the Cases of Buying Abducted Women”, accessed February 11, 2022.

 

14. Anhui Dingyuan County People’s Court (2017) Wan Xing Chu Zi No. 352 Criminal Judgment.

 

15. According to Article 30 of the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice, as long as the child is not harmed or abused, the punishment should be lenient; if the conditions are met, a suspended sentence may be applied; if the circumstances are minor, criminal punishment may be exempted. In addition, Article 8 of the Interpretation of the Supreme People’s Court provides that: “In the case of buying an abducted woman for the purpose of marriage, or a child for the purpose of raising and starting a family, where multiple family members, relatives and friends are involved, the person who plays a major role shall be investigated for criminal responsibility according to law,” which also reflects the judicial policy of lenient punishment to the crime of buying.

 

16. Jeremy Bentham, Theory of Legislation (Beijing: Publishing House of Chinese People’s Pubic Security University, 2004), 286.

 

17. Che Hao, “Should the penalties for buying an abducted woman be increased?”, accessed February 28, 2022.

 

18. Hu Yuhong, “A Jurisprudential Interpretation of ‘Human Dignity’”, Law Review 6 (2007): 7.

 

19. Wang Liming, “The Value of Personal Dignity and Its Realization in the Law of Rights to Dignity”, Tsinghua University Law Journal 5 (2013): 5.

 

20. Wang Xixin, “A discussion of the criminal responsibility for the offense of buying women: a constitutional moment for the reaffirmation of human rights”, accessed February 13, 2022.

 

21. Li Guanyu, “Is Human Dignity a Legal Interest Involved in the Crime of Buying Abducted Women?”, Issues on Juvenile Crimes and Delinquency 3 (2022): 10.

 

22. Wang Zhixiang and Yang Liying, “On the Criminal Object of the Crime of Abducting and Trafficking in Women or Children and Its Criminal Law Significance”, Research on Rule of Law 7 (2013): 33.

 

23. Luo Xiang, “Why I Advocate for Heavier Penalties for Buying Abducted Women and Children”, accessed February 8, 2022.

 

24. Sheng Hong, “Like the Crime in Blind Mountain: A Major Crime Disguised as a Trade”, accessed February 23, 2022.

 

25. Chen Xingliang and Zhou Guangquan, Modern Development of Criminal Law II (Beijing: China Renmin University Press, 2015), 195.

 

26. Wang Zhixiang and Yang Liying, “On the Criminal Object of the Crime of Abducting and Trafficking in Women or Children and Its Criminal Law Significance”, Research on Rule of Law 7 (2013): 27.

 

27. Guo Jing, “Buying abducted women is an international crime and the statutory sentence should be increased”, accessed March 9, 2022.

 

28. Li Daocui, “Judicial Statement on the Crime of Buying Abducted Women”, Issues on Juvenile Crimes and Delinquency 3 (2022): 35.

 

29. Che Hao, “Should the penalties for buying abducted women be increased?”, accessed February 28, 2022.

 

30. Sang Benqian, “Why Should Legislation Severely Punish the Crime of Buying Abducted Women?”, accessed February 8, 2022.

 

31. Bai Langtao, “Is It Necessary to Raise the Statutory Sentence for Buying Women or Children?” accessed February 15, 2022.

 

32. Yang Dan, “On the Protection of Personal Dignity in Criminal Law: From the Perspective of Cutting-edge Medical Care”, Journal of Sichuan Normal University (Social Science Edition) 4 (2016): 41.

 

33. Hunan Zhuzhou Intermediate People’s Court (2010) Zhu Zhong Fa Xing Yi Zhong Zi No. 52 Criminal Judgment.

 

34. Du Guojiang, Ran Rong and Zhao Junfu. “The Understanding and Application of the ‘Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Regarding Crimes of Trafficking in Women or Children’”, People’s Judicature 3 (2017): 26.

 

35. Paragraph 1 of Article 3 of the Interpretation of the Supreme People’s Court (2016) provides that: Whoever, in the name of introducing marriage, sells a woman to another person against her will, by illegally seizing her identity certificate or restricting her personal freedom, or by taking advantage of her vulnerability in an unfamiliar environment, language barrier or isolation, shall be investigated for criminal responsibility for the crime of abducting and trafficking in women.

 

36. Sang Benqian, “Why Should Legislation Severely Punish the Crime of Buying Abducted Women?”, accessed February 8, 2022.

 

37. Article 20 of the 2010 Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice also stipulates that criminal responsibility may not be pursued against the buyer, if, before being prosecuted, the buyer takes the initiative to report the case to the public security organs or to the relevant organizations, is willing to let the bought women return to their original places of residence, or to send the bought children back to their families, or to hand over the women and children to public security, civil affairs, women’s federations, or other organs and organizations, provided that there are no other serious circumstances.

 

38. Du Guojiang, Ran Rong and Zhao Junfu, “The Understanding and Application of the ‘Interpretation on Several Issues concerning the Application of Law in the Trial of Cases regarding Crimes of Trafficking in Women or Children’”, People’s Judicature 3 (2017): 30.

 

39. According to article 10 of the Opinions, unofficial foster care cannot be punished as the crime of abducting and trafficking in women or children. Such acts which are not for the purpose of profiting involve giving a child who cannot live on his or her own to someone else for foster care or even collecting a small amount of “nutrition fee” or “thank-you fee” due to financial difficulty or the idea of “preferring sons to daughters.”

 

40. Du Guojiang, Ran Rong and Zhao Junfu, “The Understanding and Application of the ‘Interpretation on Several Issues concerning the Application of Law in the Trial of Cases regarding Crimes of Trafficking in Women or Children’”, People’s Judicature 3 (2017): 26.

 

41. Dai Minjie, “Experts on the Crimes of Trafficking in and Buying People: The crime of buying people violates human dignity, and the penalty should be increased appropriately”, accessed February 23, 2022.

 

42. Jin Zegang, “Should the Statutory Sentence for the Crime of Buying Trafficked Women Be Amended: Also on Several Issues in the Debate of Luo Xiang, Che Hao and Other Scholars.” Issues on Juvenile Crimes and Delinquency 3 (2022): 48.

 

43. Wei Lei, “Earthbound Disorder and Norms Reconstruction of the Crime of Buying Abducted Women”, Issues on Juvenile Crimes and Delinquency 3 (2022): 27.

 

44. For example, Article 234 of the German Criminal Code prescribes sentences for the crime of abduction: a free sentence of more than one year for general cases; and a free sentence of more than six months and less than five years for less serious cases; Article 235 prescribes sentences for the crime of abducting minors: a free sentence of less than five years or being fined; Article 236 prescribes sentences for the crime of buying or selling children: a free sentence of less than five years or three years or being fined for different cases. In the section “Crimes of Slightly Seduction and Abduction” under the part “Crimes Against Freedom” of the Penal Code of Japan, different charges and statutory sentences are set based on different purposes of abduction. Paragraph 2, Article 226 of the Penal Code of Japan stipulates that anyone who buys or sells a person shall be punished by an imprisonment of more than three months and less than five years; anyone who buys a minor shall be sentenced to an imprisonment of more than three months and less than seven years; anyone who buys a person for the purpose of making a profit or who sells a person shall be punished by an imprisonment of more than one year and less than ten years; anyone who buys or sells a person for the purpose of transferring him/her to a foreign country shall be punished by an imprisonment of more than two years.

 

45. Wang Mingliang, “A Criminological Observation of Wife Buying”, Shanghai Law Journal, February 23, 2022.