Where does the juvenile custody and upbringing system go
Saving "problem teenagers" urgently needs to activate more legal means
□ Our reporter Zhu Ningning
From August 17th, the second review draft of the revised draft of the Law on the Prevention of Juvenile Delinquency will be published on the China National People's Congress website for public comments. The deadline is September 30.
The healthy growth of minors is an issue that the whole society attaches great importance to, and the issue of juvenile crimes has repeatedly stung the public's nerves.
On June 1, the "White Paper on Juvenile Procuratorial Work (2014-2019)" issued by the Supreme People’s Procuratorate showed that the number of juvenile crimes has rebounded after years of decline and has stabilized, and the number of crimes against juveniles has increased. situation.
In this revision of the Law on the Prevention of Juvenile Delinquency, there is a problem that people from all walks of life pay close attention to, that is, custody and education.
The second review of the draft no longer uses the concept of "custody and upbringing", but incorporates relevant measures into specialized education.
Article 45 of the second-review draft stipulates that: if a minor has an act specified in the criminal law and is not subject to criminal punishment because he is under the age of legal criminal responsibility, the public security organ may decide to send him to a specialized school after evaluation by the Special Education Steering Committee. Specialized education.
The people's government at the provincial level shall, in light of the actual local conditions, determine at least one specialized school to set up special places in accordance with branch campuses, class divisions, etc., to provide corrective education for the minors specified in the preceding paragraph.
The special places specified in the preceding paragraph shall be strictly managed, and the judicial administration, public security and other departments shall provide assistance.
How to deal with juvenile crimes under the age of legal criminal responsibility has always been a difficult problem in judicial practice.
In an interview with a reporter from the Rule of Law Daily, some industry experts pointed out that, from a certain perspective, the retention and reform of the custody and upbringing system is the key to the success or failure of this revision of the juvenile crime prevention law.
Where should the custody and reeducation system go?
How to reform this system scientifically and reasonably?
How to effectively rectify some young minors who commit serious violent crimes?
A series of questions are worth considering.
Defects in the system of detention
In recent years, violent crimes by young minors have repeatedly appeared in the newspapers, greatly stimulating public nerves.
Previously, at a press conference held in early August this year, Zang Tiewei, spokesperson for the Legal Work Committee of the Standing Committee of the National People’s Congress, said that preventing juvenile delinquency is not a problem that can be solved simply by increasing penalties. In general, we should continue to deal with illegal crimes. Minors have implemented the policy of education, probation, and salvation, and adhere to the principle of education first and punishment second.
Regarding juvenile crimes, especially those of public concern who are not subject to criminal punishment because they are under 16 years of age, they cannot simply be “closed” or “released”. The provisions of the criminal law should be fully used The system of custody and upbringing.
Our country’s system of custody and education has borrowed from the practices of some socialist countries such as the former Soviet Union and North Korea, and was formed in the early days of the founding of New China.
The term "custody and upbringing" first appeared in the "Joint Notice on Issues concerning the Detention Limits, Arrest Procedures, and Clearance of Juvenile Offenders" jointly issued by the two high schools and three ministries in 1952. In 1956, the relevant documents of the central authorities first clearly specified custody and upbringing as a crime Education and corrective measures for minors who are not enough to bear criminal responsibility.
The Criminal Law of 1979 stipulated that if a person is not subject to criminal punishment because he is under the age of 16, his parents or guardians shall be ordered to discipline him; when necessary, the government can also be taken into custody.
So far, custody and upbringing as a system has been legally clarified for the first time.
Since then, the Ministry of Public Security has successively issued a series of documents to stipulate the implementation content and applicable conditions of custody and education.
When the Criminal Law was revised in 1997, the relevant articles on custody and education were revised.
In 1999, the Law on the Prevention of Juvenile Delinquency reiterated the provisions of the criminal law on custody and education.
At the same time, according to requirements, in 1999 each province began to establish independent juvenile correctional management centers (teams).
It should be noted that the system of custody and upbringing has played an active role in the historical development process since its establishment, but at the same time, it has also exposed some defects.
Since many years of practice have been implemented in accordance with the procedures of reeducation through labor, detention and reeducation have not deviated from the traditional implementation of centralized management of prison admissions, so there have been such things as "only attach importance to detention and ignore education and correction", "with detention and no education", etc. phenomenon.
In addition, there are reports that minors who are in custody and rearing are detained together with minor offenders for a long time, which can easily lead to cross-infection and negatively affect their physical and mental health.
Labeling criminals prematurely makes it easy for these children to hate society, find it difficult to integrate into normal social life, and easily re-emerge on the path of crime.
It is worth noting that after 2013, the number of detention and education in various places has dropped significantly. In some places, after digesting the "stock" before 2013, no decision has been made or almost no longer decided to use detention and education. Applicable, but the control is extremely strict.
"It can be said that the lack of legislation has caused the detention and rehabilitation measures to be unsuccessful, failing to realize their establishment value and due function." Analysis by Yuan Ningning, associate professor of China University of Political Science and Law and Executive Deputy Director of the Research Base for Juvenile Affairs and Law Pointing out that there are some outstanding problems in custody and upbringing. In addition to the poor social perception of the term “custody”, which can easily cause misunderstandings, the relevant laws and regulations of custody and upbringing, including decision procedures, execution venues, and execution methods, are not very clear. The legality of restrictions on personal freedom in the custody and upbringing system has also been questioned.
Custody and upbringing to retain disputes
The law cannot be absent when dealing with serious violent crimes committed by minors.
Obviously, it is imperative to reform the custody and upbringing system.
In the early legislative process of the amendment to the Law on the Prevention of Juvenile Crimes, there was a relatively big controversy over the issue of detention and education. There were also different opinions on whether specialized education could replace custody and education.
Regarding the provisions of Article 45 of the second review of the draft, some scholars and experts are cautious.
"The conflation of custody and education with specialized education is inconsistent with the current development trend of juvenile justice around the world." In Yuan Ningning's view, specialized education cannot replace custody and education.
First of all, the two applicable objects are completely different.
Custody and education are aimed at minors who have committed serious violent crimes at a young age. Such minors are relatively dangerous and must be corrected by restricting personal freedom to carry out more intensive corrections to prevent them from harming society again.
Special education is aimed at minors with bad behaviors or serious bad behaviors. Although it is mandatory, it does not reach the level of restricting personal freedom. It is just that the control of students is relatively stricter than that of ordinary schools. some.
Therefore, if minors with serious violent crimes of relatively high personal risk are placed in specialized schools without restricting their personal freedom, to some extent, they may harm society again.
Second, the two are essentially different.
Custody and education is a corrective measure that restricts personal freedom, and specialized education is essentially an education.
According to the provisions of the current draft, after evaluation by the Special Education Steering Committee, the public security organs can decide to send them to special schools for special education.
According to the requirements of a society under the rule of law, measures to restrict personal freedom should not be decided by public security organs, but should be judicialized.
"Therefore, detention and education and special education are not the same kind of measures in terms of the target, the decision procedure, and the execution method, including the time limit. Moreover, special education cannot solve the problem of serious violent crimes among young minors. Over the years, December 12 Severe violent incidents occur frequently among year-old children. The public generally believes that the law does not have strong enough measures for these children. If they are confused, it will lead to no targeted measures to deal with and undermine the authority of the law." In Ning Ning's view, the relative lag in legislation is the crux of the problem, and the problem must be identified and targeted reforms can be made to meet actual needs.
Two systems can be designed separately
“The crimes committed by young minors not only seriously infringe upon the legitimate rights and interests of other minors, and result in many serious school bullying cases that cannot be dealt with, but also contribute to the subjective viciousness of these young minors themselves, prompting them to despise social rules and make them easier to follow. More serious crimes.” Tong Lihua, director of the Beijing Youth Legal Aid and Research Center, believes that the biggest institutional problem currently facing is how to educate and correct these minors to prevent them from committing serious crimes again.
Tong Lihua suggested that two different systems should be designed for minors who commit crimes at a young age and those who commit serious bad behaviors: specialized education and compulsory education.
Specifically, specialized education is undertaken by the administrative department of education, mainly for education and correction of minors with serious bad behaviors, which is decided by the administrative department of education and the judicial organs cooperate; compulsory education is undertaken by the administrative department of justice, and the public security organs A minor who has committed a criminal act but is not under the age of criminal responsibility submits an opinion, and the procuratorial organ will decide whether to transfer it to the people’s court, whether to conduct compulsory education, and the time limit after review by the people’s court.
Tong Lihua particularly emphasized that for the implementation of a compulsory education system, provinces hardly need to build new sites separately.
"In the past, all provinces generally had labor camps for minors, and the venues were all ready-made. In the past, minors who committed serious crimes but were not punished because they were not enough for criminal responsibility were generally sent to labor camps for minors for education. Correction".