1. How to deal with the abandonment of the elderly?
The crime of abandonment can be prosecuted and investigated anywhere, and anyone in society can call the police as long as they find it. After receiving the report, the public security organ will investigate. Or I can file a private lawsuit with the court. Abandonment is very common in reality, for example, both parties in divorce don't want to raise children, or children don't want to support their parents. However, in judicial practice, we must look at the plot and specific circumstances. For example, children with rich life are unwilling to support the elderly, and children without life are unable to support their parents. The circumstances are completely different.
Secondly, the legal procedure that constitutes the crime of abandonment should be taken.
The crime of abandonment is a minor crime stipulated in the criminal law, and its social harm is far less than other crimes such as robbery. It is only between family members and does no harm to others. It is more appropriate to solve it through mediation or other means. For example, welfare agencies help children find their parents through some channels. As long as parents accept and realize their mistakes, there is no need to pursue criminal responsibility.
The public security and judicial organs shall, after reviewing the filing materials and making necessary investigations, deal with them according to different situations:
(a) for cases that need to be filed, the undertaker should first fill in the "filing report form", which includes:
(1) reporting unit, case type, number, time and place of the crime, casualties and property damage, case summary, name of the undertaker, time of filling in the form, etc.
(two) to make a report for the record, and to make a decision on the record after the approval of the person in charge of this organ and this department.
(3) Finally, the person in charge of examination and approval shall sign or seal it. Cases directly accepted by the people's procuratorate shall be reported to the people's procuratorate at the next higher level for the record. If the people's procuratorate at a higher level thinks that the case should not be filed, it shall notify the people's procuratorate at a lower level in writing to cancel the case. If a case of private prosecution accepted by the people's court is found to meet the conditions for filing after examination, it shall be filed within 15 days from the second day after receiving the private prosecution or oral notice, and the private prosecutor shall be notified in writing.
(two) for the decision not to file a case, the staff will make a notice not to file a case. After the relevant person in charge agrees, he will inform the complainant of the reasons for not filing the case and inform the complainant that if he refuses to accept it, he can apply for reconsideration. The competent authority shall seriously reconsider and notify the unit or individual that reported, accused or reported the reconsideration result.
If a case of private prosecution does not meet the conditions for filing, it shall make a decision not to file the case within 15 days, notify the private prosecutor in writing and explain the reasons for not filing the case. For those who do not have the conditions for filing a case, but need to be punished by other departments, the report, complaint or report materials shall be transferred to the competent department for handling, and the complainant shall be notified.
Third, the constitutive requirements of the crime of abandonment.
1, object elements The object of this crime is the equal rights of the victim among family members. The object is limited to the old, young, sick or other family members who have no independent living ability. China's marriage law clearly stipulates: "Abuse and abandonment between family members are prohibited." It also stipulates the maintenance obligations that family members should perform. Being able to afford but refusing to fulfill the obligation of support infringes on the equal rights of the old, young, sick or unable to live independently in the family. Abandonment often poses a threat to the life and health of victims, is despised by public opinion, and also affects social stability and unity. Therefore, combating the crime of abandonment will help to create a good social environment where few people support and the elderly rely on it, and help to protect the legitimate rights and interests of women, especially children and the elderly.
2, objective elements This crime is objectively manifested as refusing to support the elderly, young, sick or other family members who cannot live independently. The so-called old, young, sick or other family members who have no ability to live independently refer to people in the following situations:
(1) has lost the ability to work due to old age, disability, illness and other reasons and has no source of income;
(2) although there is a source of life, but due to illness, old age, disability, life can not take care of themselves:
(3) For people who are unable to live independently because of their youth or mental retardation, the problem of abandonment does not occur except for family members.
3. Subject Elements The subject of this crime is a special subject, and it must be a person who has the legal obligation to support the abandoned person and has the ability to support it. Only people with such conditions can become the subject of this crime. If there is no legal obligation to support each other and there is no relationship between them, there will be no abandonment problem.
4. Subjective elements This crime is intentional in subjective aspects. That is, refusing to support knowing that they should fulfill their maintenance obligations. There are various motives for refusing to support, such as some abandoning the elderly as a burden; Some refuse to raise children under the pretext of divorce; Some abandon their children to create conditions for remarriage; Some abandon their wives or husbands in order to force each other to divorce. In short, deserters are motivated by individualism, extreme selfishness or other despicable motives.
(2) The criteria for filing the crime of abandonment are that people who are old, young, sick or have no ability to live independently have the obligation to support and refuse to support, and the circumstances are bad.
If the crime of abandonment in reality meets the above contents at the same time, it is generally convicted and punished for abandonment. At this time, according to the provisions of Article 261 of the Criminal Law, people who are old, young, sick or otherwise unable to live independently are obliged to support and refuse to support. If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance. Obviously, the crime of abandonment is punishable. However, the specific sentencing depends on the actual situation, with a maximum of five years in prison.
For individuals who are subject to criminal punishment, the judicial organs need to punish them in accordance with the established criminal punishment provisions after determining that the infringement has been committed. Generally speaking, criminal charges generally require public security organs to file a case for investigation first.
I hope the above content can help you. Please consult a professional lawyer if you have any other questions.
Legal basis: Article 261 of the Criminal Law of People's Republic of China (PRC). Those who refuse to support those who are old, young, sick or unable to live independently shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance.