受父权制度的影响，家庭虐待的问题曾贯穿我国封建社会始末。中国古代根深蒂固的尊卑思想和历朝各代厚此薄彼的法律规定相辅相成，维系着传统社会的封建统治和社会秩序，却也造成了强势家庭成员虐待弱势家庭成员的普遍现象。丈夫打骂妻妾、家长打骂子女是封建家庭制度下被普遍接受的社会习惯。近代中国，由西方传入的自由平等思想有力地冲击了封建家庭制度，人们开始否定对家庭成员施暴的正当性。新中国成立后，1950年《中华人民共和国婚姻法》出台，夫妻平等、互敬互爱、父母与子女之间不得虐待成为法律规范。1979年《中华人民共和国刑法》规定了虐待罪，正式向社会宣布，虐待家庭成员的行为不是家务事，而是可能构成犯罪、要受刑法处置的行为。

立法者设置虐待罪的目的是加重保护弱势家庭成员，然而，立法上的种种问题却导致虐待罪削弱了对弱势家庭成员的保护。首先，虐待罪在犯罪认定上存在立法问题。虐待罪的行为外观与故意伤害罪雷同，导致司法实践中难以区分此罪与彼罪，造成同案不同判的结果。本文介绍了美国学者斯塔克的“强制控制理论”，用以定义虐待罪行为人的主观心态。该理论可以帮助区分虐待罪与故意伤害罪。我国未明确将精神虐待纳入虐待罪的评价范围，忽视了精神虐待的严重危害性。对此，英国2021年《家庭虐待法》关于心理虐待和情感虐待的规定和《法国刑法典》关于精神骚扰罪的规定可提供一定借鉴。我国未将违反人身安全保护令的行为纳入虐待罪的评价范围。而英、美、德、法四国都建立了保护令与刑法之间的衔接机制，可为我国提供一定借鉴。其次，我国虐待罪的追诉程序存在立法问题。自诉部分缺乏公权力的介入，导致自诉案件立案难、胜诉难。对此，德国的检察机关自诉担当制度可提供一定借鉴。自诉转公诉机制缺乏可操作性。对此，可以通过具体规定“没有能力告诉”的情形和建立发现机制、落实告诉责任来解决。最后，我国虐待罪的刑罚存在立法问题。相比其他侵犯人身权利的犯罪，虐待罪的刑期过短，无法发挥刑罚的个别预防和一般预防功能。而域外许多国家，如法国、意大利、葡萄牙，都将家庭虐待犯罪视为重罪，这为提高我国虐待罪刑期提供了借鉴。虐待罪还存在刑罚种类单一的问题，导致无法通过不同种类刑罚的组合，更好地教育改造行为人。增加罚金刑，附加或单独适用，既可以增加虐待罪的威慑力，也可以弥补为预防虐待罪而产生的额外财政支出。

Under the influence of the patriarchal system, the problem of domestic abuse has run through the whole of China's feudal society. The deep-rooted ideology of respect and inferiority in ancient China and the legal provisions of various dynasties favored one over the other, maintaining the feudal rule and social order of traditional society, but also caused a common phenomenon of abuse of weak family members by powerful family members. It is a generally accepted social habit under the feudal family system for husbands to beat and scold their wives and concubines, and for parents to beat and scold their children. In modern China, the idea of freedom and equality introduced from the West had a powerful impact on the feudal family system, and people began to deny the legitimacy of violence against family members. After the founding of the People's Republic of China, the Marriage Law of the People's Republic of China was promulgated in 1950, and the equality of husband and wife, mutual respect and love, and the prohibition of abuse between parents and children became legal norms. The Criminal Law of the People's Republic of China in 1979 stipulates the crime of maltreatment, officially announcing to the public that the abuse of family members is no longer a domestic matter, but may constitute a crime and be punished by the criminal law.

The legislator created the offence of abuse with the aim of increasing the protection of vulnerable members of the family, however, various legislative problems have led to the offence of abuse weakening the protection of vulnerable family members. First of all, there are legislative problems in the determination of the crime of abuse. The appearance of the crime of abuse is similar to that of intentional injury, which makes it difficult to distinguish this crime from the other crime in judicial practice, resulting in different judgments in the same case. This article introduces the "coercive control theory" of the American scholar Stark, which is used to define the subjective state of mind of human beings who commit crimes of abuse. This theory can help distinguish the crime of abuse from the crime of intentional injury. China has not explicitly included mental abuse in the scope of evaluation of the crime of abuse, ignoring the serious harm of mental abuse. In this regard, the provisions on psychological abuse and emotional abuse in the UK Domestic Abuse Act 2021 and the offence of mental harassment in the French Penal Code can provide some reference. Violations of personal safety protection orders are not included in the scope of the assessment of the crime of abuse. The United Kingdom, the United States, Germany and France have all established a mechanism for linking protection orders and criminal law, which can provide some reference for China. Second, there are legislative problems with the prosecution procedure for the crime of abuse in China. The lack of involvement of public power in the private prosecution part makes it difficult to file and win private prosecution cases. In this regard, the private prosecution system of prosecutors in Germany can provide some reference. The mechanism for transferring private prosecutions to public prosecutions lacks operability. This can be solved by specifying the situation of not having the ability to sue" and establishing a discovery mechanism and implementing the responsibility to tell. Finally, there are legislative problems with the punishment of the crime of abuse in our country. Compared with other crimes against personal rights, the sentence for the crime of ill-treatment is too short to perform the individual preventive and general preventive functions of the penalty. However, many countries outside the region, such as France, Italy, and Portugal, regard domestic abuse crimes as serious crimes, which provides a reference for increasing the sentence for abuse crimes in China. The crime of ill-treatment also has the problem of a single type of punishment, which makes it impossible to better educate and reform the perpetrator through a combination of different types of punishment. Increasing fines, applied additionally or separately, can both increase the deterrent effect of the crime of abuse and compensate for the additional financial expenditure incurred to prevent it.