A few days ago, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the "Implementation Measures for the Sealing of Juvenile Criminal Records" (hereinafter referred to as the "Implementation Measures"), which will come into force on May 30, 2022.
In order to better understand and apply the "Implementation Measures", the head of the Research Office of the Supreme People's Court, the head of the Ninth Procuratorate of the Supreme People's Procuratorate, the head of the Criminal Investigation Bureau of the Ministry of Public Security, and the heads of relevant departments of the Ministry of Justice were interviewed by reporters.
Question: We have seen that the Criminal Procedure Law only stipulates that "if he was under the age of 18 when he committed a crime and was sentenced to fixed-term imprisonment of less than five years, the relevant criminal records shall be sealed." The "Implementation Measures" listed the scope of the sealing. A lot. Does this rule break the law? How did the procuratorial organs take the lead in drafting the Implementation Measures?
A: The Criminal Procedure Law establishes a system for sealing up criminal records, which will help juveniles involved in misdemeanors eliminate the labeling effect caused by their criminal records and reintegrate into society, as well as promote good social governance.
The procuratorial organs have always attached great importance to the sealing of juvenile criminal records.
As early as 2017, the Guidelines for Juvenile Criminal Prosecution Work (for Trial Implementation) made a special chapter for this work, and detailed the relevant content of the Criminal Procedure Law at the top-level design level, and local procuratorial organs will also formulate with relevant departments. The implementation rules further standardize the working procedures.
In 2021, the Supreme People's Procuratorate specially issued a sample seal of criminal record sealing, and worked with the archives department to further regulate the filing, storage and sealing of juvenile case files.
The above measures ensure the sealing effect of the procuratorial link.
But at the same time, we have also seen that although each department has developed a relatively complete system, the connection between them is not smooth, and there are even conflicts in individual regulations. It is urgent to unify standards at the national level. Draft the "Implementation Measures".
During the drafting process, we did find a lot of problems. For example, the Criminal Procedure Law stipulates that "if he is under the age of 18 when he commits a crime and is sentenced to fixed-term imprisonment of less than five years, the relevant criminal records shall be sealed." The "relevant criminal record" was not specified.
This has led to some places in judicial practice that juveniles’ illegal records, such as absolute non-prosecution, conditional non-prosecution, relative non-prosecution, acquittal, community correction, special education, administrative punishment, etc., do not belong to “criminal records”. It is not within the scope of sealing, resulting in the disclosure of the materials of the minors involved in the criminal record; some places believe that the criminal record is limited to the final results such as judgment and non-prosecution, and the compulsory measures records, case filing documents, investigation documents, penalty execution documents and other process documents are not included. Within the scope of sealing, various information and materials have been improperly leaked during the investigation and prosecution of some cases, and it is too late to seal up after the judgment is made.
Article 103 of the Law on the Protection of Minors stipulates: "Public security organs, people's procuratorates, people's courts, judicial administrative departments, and other organizations and individuals shall not disclose the names, images, domiciles, schools attended, and other persons who may identify minors in relevant cases. Article 59 of the Juvenile Crime Prevention Law stipulates: “Where the criminal records of minors are sealed up in accordance with the law, the public security organs, people’s procuratorates, and people’s courts shall and the judicial administrative department shall not provide it to any unit or individual, except for the judicial organ to inquire about the needs of handling the case or the relevant unit in accordance with the relevant provisions of the state. The unit and individual making inquiries in accordance with the law shall keep the relevant record information confidential. The records of correctional education and specialized education, as well as records of administrative punishment, criminal compulsory measures and non-prosecution, shall be subject to the provisions of the preceding paragraph.” Therefore, in response to the aforementioned issues, Article 2 of the Implementation Measures clearly stipulates that “juveniles who should be sealed up criminal records, including all case files and electronic file information about juvenile crimes or suspected crimes formed during the process of investigation, prosecution, trial and criminal execution. , records of non-prosecution, taking criminal compulsory measures, and records of social investigation, help and education inspection, psychological counseling, judicial assistance, etc. for minors involved in crimes shall be sealed up in accordance with the content and procedures stipulated in these Measures.”
Such a refinement of the storage scope is not only to take into account such possible impacts, and to reduce the problem of inquiries and leakage of relevant records of the social evaluation of the minors involved in the case, which does exist in practice and has caused serious adverse effects, and is also an implementation of the implementation of minors. Specific measures for the Law on the Protection of Persons and the Law on the Prevention of Juvenile Delinquency.
It should be emphasized that, given that the online system lacks separate entry, management and encryption settings for juvenile delinquency cases, the "Implementation Measures" specifically stipulates that electronic archive information should also be sealed, that is, Article 10 stipulates that "for the electronic information system The juvenile criminal record data that needs to be sealed shall be marked with a sealing mark, and information inquiries, sharing and reuse shall not be carried out without statutory inquiry procedures. The sealed juvenile criminal record data shall not be provided or connected to external platforms.”
Ensure that all dossier materials are sealed in place.
In the next step, the procuratorial organs must conscientiously perform the procuratorial supervision power over the sealing of criminal records, and ensure that the "Implementation Measures" are effective.
It needs to be emphasized that minors who are not fully mature physically and mentally should be given special priority protection in accordance with the law, but in practice, we must also adhere to the combination of leniency and strictness. If the sentence exceeds five years, the criminal record shall not be sealed up according to law.
Q: In judicial practice, there are many matters that the public security organs handle criminal record inquiries. May I ask, what are the considerations of the public security organs for the next step in implementing the "Implementation Measures"?
A: The Ministry of Public Security has always attached great importance to the investigation of criminal records.
In December 2021, on the basis of sufficient research and demonstration, by accessing the criminal judgment data of the Supreme People's Court, the "National Criminal Record Information System" was established, and the "Regulations on the Handling of Criminal Record Inquiries by Public Security Organs" (hereinafter referred to as the "Regulations") were issued. ), making it clear that the criminal record is subject to the judgment documents of the people's court, and the public can issue a "Certificate of No Criminal Record" to achieve "cross-province handling", which can be handled in the place of household registration and residence, which effectively provides convenience for the masses.
Regarding the sealing of juvenile criminal records, Article 10 of the "Regulations" specifically stipulates, "For personal inquiries, if the applicant has a criminal record, but he was under the age of 18 at the time of the crime, he shall be sentenced to a penalty of not more than five years in prison. The acceptance unit shall issue a "Certificate of No Criminal Record". For unit inquiries, if the inquired object has a criminal record, but was under the age of 18 at the time of the crime, and is sentenced to a penalty of less than five years in prison, the acceptance unit shall issue a "Inquiry Notification Letter" , and indicate that the object of inquiry has no criminal record. If the law provides otherwise, the provisions shall be followed." The "Implementation Measures" further clarified the sealing of criminal records, and especially emphasized that it is necessary to seal up the paper materials formed in the process of handling cases. Relevant electronic data should also be sealed.
Local public security organs will strictly follow the requirements of the "Implementation Measures" and "should be sealed off".
At the same time, the "Implementation Measures" also further refines the criminal records of the minors involved in the case, which is an important supplement and improvement to the "Regulations". The public security organs in various places will also strictly implement them, and effectively help the minors who have committed crimes to enter school and find employment smoothly. , reintegrate into society.
Q: In order to ensure the effectiveness of the court's sealing of the information of minors involved in the case, what perfect provisions have the "Implementation Measures" made?
A: The criminal record sealing system is an important legal system for educating and saving minors who have committed minor crimes. Its function and significance are to minimize the impact of minor criminal records on minors’ reintegration into society and to encourage them to repent Refresh, get back on track.
All along, the people's courts have attached great importance to the judicial protection of minors and have conscientiously implemented the criminal record sealing system.
However, due to the relatively principled provisions of the Criminal Procedure Law, there are still different understandings of some specific operational issues of the criminal record sealing system in practice.
After in-depth research and demonstration, the "Implementation Measures" have made uniform and clear regulations on relevant issues.
The first is to clarify the issue of criminal record sealing for committing several crimes before and after the age of 18.
That is to say, committing several acts before and after reaching the age of 18 constitutes one crime or several crimes that are dealt with together. As well as the criminal records of juveniles exempted from criminal punishment, the entire case shall be sealed up in accordance with the law.
The second is to clarify the issue of the criminal record sealing of minors and adults who commit crimes together.
Clear and specific provisions are made according to whether the case is divided into separate cases: if the case is divided into cases, while the materials and information of the minor's case file are sealed, the cover of the unsealed adult file should be marked with obvious signs such as "contains criminal record sealing information". Necessary confidentiality measures shall be taken for the relevant information; if the case is not dealt with in separate cases, obvious signs such as "contains criminal record sealing information" shall be marked on the cover of the entire case file, and necessary confidentiality measures shall be taken for the relevant information.
The third is to make clear stipulations on how to deal with the sealed criminal records when committing intentional crimes after adulthood.
For minors whose criminal records have been sealed, who intentionally commit a crime after reaching adulthood, taking into account factors such as the purpose of establishing the criminal record sealing system, the rehabilitation of the defendant's previous crime, and the subjective viciousness of the subsequent crime, the "Implementation Measures" clearly stipulates that the people's court should His previous criminal record should be stated in the judgment document.
The promulgation of the "Implementation Measures" will definitely help the criminal record sealing system to be implemented more comprehensively and accurately, and will help the system to give full play to its important functions.
Q: The criminal execution is an important part of the sealing of juvenile criminal records. What does the Ministry of Justice think about the implementation of the "Implementation Measures" in the criminal execution?
A: The juvenile criminal record sealing system is an important system for criminal justice to protect the legitimate rights and interests of juveniles.
The Ministry of Justice has always attached great importance to the protection of the privacy and information of minors who have committed crimes, strictly implemented the Criminal Procedure Law, the Community Correction Law and other relevant laws and regulations, and conscientiously done a good job in the sealing of juvenile criminal records, so as to protect the health of minors. Growth has created a good legal environment.
In order to further standardize the sealing of juvenile criminal records during criminal execution, the Ministry of Justice will guide local judicial administrative organs to earnestly study and implement the "Implementation Measures for the Sealing of Juvenile Criminal Records" by the "two high schools and two ministries", and organize the Relevant publicity and training, strengthen coordination and cooperation with public security, procuratorial, legal and other departments, standardize work procedures, and ensure that the legitimate rights and interests of juvenile criminals are effectively protected.
Mainly do the following three aspects of work: First, timely and comprehensively do a good job in sealing up criminal records.
Article 13 of the "Implementation Measures" clearly stipulates the content and time limit for the sealing of criminal records during criminal execution, that is, "for juvenile criminals sentenced to public surveillance, probation, parole or temporary execution outside prison, community corrections shall be implemented in accordance with the law. The community corrections establishment at the place of execution shall seal up the criminal records of the minors involved within three days after the criminal execution is completed.”
The Ministry of Justice will guide local judicial and administrative organs to implement the principles of timeliness and effectiveness, seal up all dossier materials and electronic archives of juvenile crimes formed during the criminal execution process in a timely manner according to law, and establish and improve a strict custody system to ensure that the sealing effect is in place.
The second is to handle inquiries on sealed criminal records in strict accordance with the law.
The "Implementation Measures" make detailed provisions on the subject, procedures, and the form of issuing certificates for sealing up criminal records. The Ministry of Justice will instruct local judicial and administrative organs to strictly review the legality of the reasons, basis and scope of use for inquiries, and handle relevant inquiries in strict accordance with legal procedures. Work, strictly require the signing of confidentiality commitments, and issue a criminal record certificate within the legal time limit in accordance with the law to ensure that the rights and interests of minors are properly protected.
The third is to strengthen the implementation of confidentiality measures and confidentiality responsibilities.
The "Implementation Measures" clearly stipulate the confidentiality measures and confidentiality responsibilities for the sealing of criminal records. The Ministry of Justice will guide the judicial administrative organs of all localities to implement the confidentiality management of the relevant dossier materials for the sealing of criminal records, the encrypted storage of electronic file information, and strictly implement the relevant staff. To meet the confidentiality requirements, establish and improve the responsibility system, and strictly investigate the responsibilities of relevant personnel according to law for those who improperly disclose juvenile criminal records or privacy and information to ensure that confidentiality responsibilities are in place.