Prosecutor should play key role in prevention of child abuse

Tongtong, a 6-year-old girl in Fushun, Liaoning province, was nearly battered to death by her divorced mother and her mother's partner. In Maoming, Guangdong province, a 7-year-old boy has suffered such severe burns by his father's cigarette butts that he must undergo amputation.

The local public security organs have investigated both the cases and the parents will be charged with domestic violence.

However, apart from the above-mentioned cases that have caught media's attention, there are numerous child abuse cases where the perpetrators face no charges, because under the current law, only serious child physical abuse and neglect are defined as crimes.

Although, according to the United Nations International Children's Emergency Fund, every year there are over 10 million child abuse cases and 60 percent of the victims are abused by their own parents. Therefore, how to effectively prevent abusive parenting is a much more serious problem nationwide.

Article 18 of General Principles of the Civil Law enshrined in 1986 provide the system of revocation of minor's guardianship based on an application filed by a concerned party or unit, if the people's court finds the guardian was not fulfilling his or her duties or was infringing upon minor's lawful rights and interests. However, over the past 28 years, that article has never been applied in practice, and thus article 18 is called the dormant clause.

In 2014, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Civil Affairs jointly issued the Opinions on Several Issues Concerning Law-based Handling of the Infringement of the Rights and Interests of Minors by Their Guardians, deciding that guardianship of parents or other guardians who sexually abuse, are violent, abuse and abandon minors will be revoked according to law.

Thus, revocation of minor's guardianship came into force. And in 2015, the people's court of Tongshan district, Xuzhou city, Jiangsu province concluded the first case of revoking the guardianship of a minor's parent. With the support of the prosecutor, the local civil affairs bureau filed the lawsuit on behalf of an 11-year-old girl against her parent, claiming that her father had sexually abused her many times while her mother ignored her. The prosecutor played an important role in winning the case as well as in the process of litigation by deciding to call the party supporting prosecution in the trial.

Later, in 2017, Article 36 of General Rules of the Civil Law stipulated the specific applicants for revocation of guardianship consist of any other person legally qualified for guardianship such as an urban residents' committee, a village committee, a school, a medical institution, a women's federation, an organization for the protection of minors, and a civil affairs department, which is as same as Article 36 of the newly enacted Civil Code in 2020.

Although many qualified applicants can be a party in civil law, due to institutional and cultural reasons very few cases involving child abuse are filed for revocation of guardianship. Due to lack of knowledge and inexperience in litigation, those applicants are reluctant to file lawsuits, let alone gather enough evidence for the trial.

Therefore, the newly revised Law on the Protection of Minors, which will take effect on June 1, 2021, stipulates that in case the lawful rights and interests of a minor are infringed and related organizations or individuals do not file charges on behalf of them, the people's procuratorates shall support and supervise those organizations and individuals to file lawsuits; and the people's procuratorates shall have the right to bring public interest litigations if the case involves public interests (Article 106).

This provision authorizes the prosecutor to exercise legal supervision over lawsuits concerning minor's rights. Obviously involving the prosecutor in civil actions for the protection of minor's rights will explore a feasible intervention mechanism for prevention of child abuse by parents and so forth.

And on this level, the involvement of prosecutors in litigations concerning revocation of guardianship would effectively activate the dormant clause and fulfill the legislative intent of Article 36 of the Civil Code. In addition, since the prosecutors are well-experienced litigation specialists, their involvement in the lawsuits could provide strong support for the individual or organization plaintiffs and enhance the quality of trial.

Furthermore, according to Article 106, the prosecutor can initiate public interest litigations against the abusive parents. Here it is necessary to explain why parent guardianship relates to public interests and the lawsuit concerning revocation of guardianship could be regarded as one type of public interest litigation.

In modern society, it is recognized that children are the future of the society as well as the country, and thus they “belong” to the society rather than parents. Moreover, guardianship is not a private thing but a social institution.

And in this sense, it is the state who is the real guardian of minors, while it just trusts the guardianship to parents. In other words, the interests of minor's guardianship do not only concern individual and family interests, but also public interests.

In fact, in many civil law and common law countries the prosecutor directly brings lawsuits against the parents in the name of the representative of public interests.

Additionally, the newly revised Law on the Protection of Minors has designed a social network for minors' protection including the kindergartens, schools, hospitals, communities, social organizations and public agencies such as the public security organs, civil affairs departments and the people's procuratorates.

Among those various units, given their different functions, it is important to make roles explicit in the network as well as cooperation. For example, schools, hospitals as well as communities etc. shall be responsible for timely reporting information to public agencies when it appears children have been abused, and the civil affairs departments are to be responsible for the arrangements of temporary or long-term guardianship of the abused children.

Directed and supervised by the prosecutor, the public security departments are in charge of criminal investigations and administration sanctions of child abuse cases. And the people's procuratorates, who are state organs for legal supervision to ensure the enforcement of state laws in a unified and proper manner, shall play a leading role in the network and only in this way, can the network respond holistically to the prevention of child abuse both in the criminal and civil justice process and function on the right track to the rule of law.

The author is a professor at the Institute of Law, Chinese Academy of Social Sciences. The views don't necessarily represent those of China Daily.

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