The age of criminal responsibility is lowered:

What is the lower limit for punishing juvenile murderers?

　　China News Weekly reporter/Xu Tian

　　Published in the 969th issue of China News Weekly on October 26, 2020

　　"A person who has reached the age of 12 but not the age of 14 who commits the crime of intentional homicide or intentional injury, causing death, and the circumstances are abominable, shall be subject to criminal responsibility with the approval of the Supreme People’s Procuratorate.” October 13, Criminal Law Amendment (11) ) The second draft of the draft was submitted to the Standing Committee of the National People's Congress for deliberation. The individual lowering of the legal minimum age of criminal responsibility is the most concerned content.

　　This adjustment can be described as the "boots landing" after a long controversy.

The 15-year-old Shaanxi Shenmu girl was forced into prostitution, beaten to death, dismembered and buried by 6 minors, and the 12-year-old Hunan boy was dissatisfied with the discipline and killing of his biological mother... In recent years, juvenile criminal cases have been frequently reported, and the public has been updated. Know the bottom line.

　　The latest case that sparked heated debate occurred a year ago.

A 13-year-old boy in Dalian killed a 10-year-old girl in the same community. According to the "Criminal Law", because the perpetrator was under 14 and did not reach the legal age of criminal responsibility, he will not be held criminally responsible.

In the end, the boy was taken into custody by the public security organs.

After the case was notified, public opinion immediately ignited, and the entire network participated in the discussion of whether juvenile crimes of this age should be punished.

The general tendency of public opinion is that the age of criminal responsibility should be lowered to allow them to receive due punishment.

　　A year later, the second review of the Criminal Law Amendment (11) draft responded to this simple value.

However, academic experts have pointed out that in addition to punishment, how to rectify and educate such minors urgently needs to be implemented.

Long-standing clash of opinions

　　In the drafting of the Criminal Law Amendment (11), whether the age of criminal responsibility should be lowered is a focal issue.

　　Feng Jun, a member of the Standing Committee of the National People's Congress and a member of the Social Construction Committee of the National People's Congress, said that in many surveys, it has been found that all sectors of society and practical departments have responded strongly to the issue of the younger age of juvenile delinquency, and calls for lowering the age of criminal responsibility are louder.

　　At this year’s National Two Sessions, the China Democratic Progressive Central Committee submitted a related party proposal: “my country’s existing laws lack complete and powerful punishments for criminal acts committed by minors under 14 years of age (hereinafter referred to as “low-age minors”). The design of the system has prevented justice from being demonstrated, which not only caused great harm to the victims, but also caused widespread doubts in society."

　　One by one, reports of vicious crimes by minors under the age of 14 have made the discussion of lowering the age of criminal responsibility "out of the circle."

For the legal circles, this controversy has been going on for many years.

Dr. He Xin from East China University of Political Science and Law and Cao Junhua, a judge of Shanghai Changning District People’s Court, pointed out in a co-authored paper that most Chinese academic circles oppose the proposal to lower the age of criminal responsibility or maintain a rational attitude. They think it is inappropriate or at least should be Reduce age on the basis of full research and research.

　　The cautious attitude of scholars is based on several considerations.

On the one hand, the claim that juvenile delinquency is becoming younger and more violent lacks empirical basis.

On June 1 this year, the Supreme People’s Procuratorate issued the "White Paper on Juvenile Procuratorial Work (2014-2019)". The white paper pointed out that the current overall situation of juvenile crime is stabilizing and improving. Minors are suspected of serious violent crimes and drug crimes. The number of school bullying and violent crimes, as well as crimes committed by minors between 14 and 16 years old, has gradually decreased.

　　Pi Yijun, a professor at China University of Political Science and Law and director of the Center for Juvenile Delinquency and Juvenile Justice, told China News Weekly that from their survey, there is no data to support that juvenile delinquency is increasing faster than adult delinquency, and there is no lower age of crime. The problem of "cannot make overall judgment based on a few serious cases."

　　On the other hand, some scholars and lawyers pointed out that blindly lowering the age of criminal responsibility will make minors enter the scope of punishment by the criminal justice system prematurely, which may be detrimental to their physical and mental health.

Fang Yan, deputy to the National People’s Congress and vice president of the Shaanxi Lawyers Association, told China News Weekly that due to minors’ low cognitive ability and weak physical and mental endurance, the application of penalties can easily lead to “cross infection” and give rise to prison-like crimes. Personality.

Not only is it not conducive to crime prevention, but it is also easy to cause them to commit crimes again.

　　Shen Chunyao, member of the Standing Committee of the National People's Congress and director of the Legal Work Committee of the Standing Committee of the National People's Congress, mentioned that in recent years, there have been extreme cases of vicious crimes by young minors at regular intervals.

"Lowering the age of criminal responsibility is a simple way to deal with it. When amending the law, how old should you consider the age? After it is lowered, similar cases are likely to occur under that age. Therefore, to lower the age of criminal responsibility, many criminal law experts , Legal experts have reservations."

　　Pi Yijun told China News Weekly that even lowering the age of criminal responsibility may not necessarily reduce the rate of juvenile crime.

He believes that juveniles are emotional, not as rational as adults.

Lowering the age of criminal responsibility may not have a great deterrent effect.

　　On the contrary, some scholars and experts insist that the age of criminal responsibility should be lowered.

They pointed out that the current social life and education level have improved compared with the past. The information received by young people is far more than before, the cognitive ability is earlier, and the psychology is also earlier than in the past.

　　The law has also made relevant adjustments to this.

In 2017, the "General Principles of the Civil Law" lowered the age of persons with limited capacity for civil conduct from 10 to 8 years, and the "Public Security Administration Punishment Law of the People's Republic of China (Revised Draft for Public Comment)" lowered the age of administrative detention from 16 to 8 14 years old.

　　Prior to the first review stage, the media reported that the draft "plans to individually lower the legal minimum age of criminal responsibility through special procedures under specific circumstances."

From the three successive restrictions on "specific", "special" and "individual", we can see that the legislature is cautious.

Not a simple compromise

　　Among the diametrically opposed views, some scholars have taken the middle route, thinking that the “malicious supplementary age” rule of the common law system can be introduced, that is, if there is sufficient evidence that minors can distinguish right from wrong, but with subjective malice, Persisting in breaking the law, even if he is under 14 years old, he can still be held criminally responsible.

For example, in the deliberate homicide case of a 13-year-old boy in Dalian, according to the information later disclosed by the media, he has a clear understanding of being under 14 years old and not having to bear criminal responsibility.

　　The Democratic Progressive Central Committee pointed out in a party proposal submitted by the two sessions this year that rigid regulations on the age of criminal responsibility have caused some young minors to feel confident about crimes.

In judicial practice, there are also cases where someone deliberately manipulates young minors to commit crimes or the perpetrator deliberately uses the "age advantage" to commit crimes to avoid punishment.

Therefore, the China Democratic Progressive Central Committee suggested that the practice of "maliciously supplementing the age" can be introduced and a "skylight" can be set in the criminal law.

　　Guo Kaiyuan, director of the Youth Law Institute of the China Youth Research Center, told China News Weekly that he had previously disapproved of lowering the age of criminal responsibility.

In 2015, he went to Hunan to investigate the murder of a teacher by three children under the age of 14, and the perpetrator was sent to a work-study school.

But he found that the legal and social effects of the case were both problematic.

He was extremely shocked, and later argued that the age of criminal responsibility can be adjusted individually, that is, minors under the age of 14 should be investigated for criminal responsibility when they are suspected of more serious crimes.

"Such cases do not happen frequently, but cases do occur, and the law does have loopholes and should be revised. Now, the amendment is (toward) this direction (under adjustment)."

　　Although some experts have suggested that this adjustment in the second review of the Criminal Law Amendment (11) draft is a compromise, Guo Kaiyuan pointed out that it cannot be simply regarded as the localization of the rule of "maliciously supplementing the age" in the common law system.

The rule of "maliciously supplementing the age" does not impose restrictions on the crime, and this adjustment of the Criminal Law Amendment has the precondition of the crime-"committing the crime of intentional homicide, intentional injury, causing death, and bad circumstances."

　　my country’s criminal law stipulates that minors between 14 and 16 years of age shall bear criminal responsibility when committing 8 crimes including intentional homicide, intentional injury causing serious injury or death, rape, robbery, drug trafficking, arson, explosion, and poisoning. .

　　Guo Kaiyuan believes that it is more reasonable to limit the crimes to the crimes of intentional homicide, intentional injury, death, and bad circumstances for minors between 12 and 14 years old.

He pointed out that the malignant cases of young minors reported by the media in recent years have basically focused on these two crimes.

In addition, “for the age group of 12 to 14 years old, the crime is really not suitable for expansion. This reflects the protection of minors.”

　　However, when the 22nd meeting of the Standing Committee of the 13th National People's Congress deliberated the second review of the Criminal Law Amendment (11) draft, some participants also put forward different views.

　　Chen Sixi, a member of the Standing Committee of the National People's Congress and vice chairman of the National People's Congress Social Construction Committee, suggested that "causing death" should not be used as a condition for investigating criminal responsibility.

Although some juvenile crimes did not result in death, the victim was disfigured and even became a vegetative person. It is unfair that criminal responsibility cannot be pursued in this case.

Specialized correction education

How to replace custody and upbringing?

　　The replacement of custody and education with specialized correction education is another important change related to the amendment of the Criminal Law.

　　The spokesperson of the Legal Work Committee of the Standing Committee of the National People's Congress pointed out that the second-review draft of the Criminal Law Amendment (11) intends to "walk on two legs": on the one hand, under certain circumstances, through special procedures, the legal minimum age of criminal responsibility will be individually lowered. ; On the other hand, we should take overall consideration of issues related to the revision of the Criminal Law and the Law on the Prevention of Juvenile Delinquency, and make a good connection in the improvement of specialized correction education.

　　The second review manuscript pointed out that a person who has reached the age of 12 but not the age of 14 who commits the crime of intentional homicide or intentional injury, causing death, and the circumstances are bad, shall be subject to criminal responsibility upon approval by the Supreme People’s Procuratorate.

　　Does this mean that punishment should be replaced by specialized correction education?

Yuan Ningning, associate professor of China University of Political Science and Law and executive deputy director of the Juvenile Affairs Governance and Legal Research Base, told China News Weekly that under the mechanism approved by the Supreme People’s Procuratorate, there will be minor criminals aged 12-14 in the future. Under the circumstances, criminal responsibility is assumed, but there will also be minor offenders of this age who have been approved to not bear criminal responsibility and receive special correction education.

In his view, criminal law and specialized correction education are an alternative relationship.

If it is conducive to their return to society and protect society, special corrective and educational measures should be applied first, rather than punishment, and punishment should be the last choice.

　　How to define specialized correction education, who will manage it, how the plan will be designed, and how the effect will be evaluated, all urgently need to be implemented.

For a long time in the past, the custody and upbringing system was the most stringent punishment for criminal behaviors of young minors, ranging from 1-3 years.

However, since the implementation of this system, there have been problems such as systemic deficiencies and conflicts between relevant normative documents, and its effects have also lacked scientific judgment.

　　According to media reports, Feng Jun, a member of the Standing Committee of the National People’s Congress and a member of the Social Construction Committee of the National People’s Congress, pointed out that in their investigations, they found three types of outstanding issues regarding detention and education: First, the implementation subject is not clear, whether it is a public security organ, a school or a court ?

The second is that the implemented procedures lack top-level design and institutional norms. If minors who are suspected of committing crimes or minor crimes are sent to a detention and correction facility, who decides and which procedures are used to decide, there is currently no clear system setting.

The third is that the facilities for implementation are not available, and the funding guarantee for implementation is imperfect, which has resulted in unsatisfactory results in the implementation of detention and education.

　　In 2013, the reeducation through labor system was abolished, and the detention and reeducation system further faced the problem of lack of places.

Chen Haiyi, deputy chief of the Juvenile Tribunal of the Intermediate People’s Court of Guangzhou City, Guangdong Province, pointed out that in current judicial practice, public security organs generally return criminally involved minors to their families for discipline, but there is no relevant department for “ordering discipline”. Follow-up supervision, not to mention whether the family has the ability to discipline.

　　Pi Yijun pointed out to China News Weekly that compared with the detention and rehabilitation system where public security organs make decisions, specialized correction education is further judicialized.

He believes that for vicious cases committed by minors under the age of 14, an expert group should be set up to handle individual cases.

The members of the expert group should include public prosecutors and legal personnel, as well as experts in the education sector, psychiatrists, school head teachers, social workers, etc., to conduct detailed investigations and assessments of the causes of each minor's crime, and form an individualized investigation report.

The court's decision should be based on this, and make a truly effective personalized plan for special correction education.

　　Pi Yijun believes that most judges and prosecutors have not received juvenile justice training, and they still treat cases as adults. This needs to be improved.

He further pointed out that the current juvenile justice in China is not independent and depends on adult justice, which is inappropriate and unfair.

The Juvenile Protection Law and the Juvenile Crime Prevention Law focus on protection and prevention, and are not the substantive and procedural laws of the juvenile law. Pi Yijun said that this is the next issue that needs to be resolved.

　　In addition, in the discussion on specialized correction education, one of the issues that everyone is most concerned about is, in the future, where will juvenile offenders between the ages of 12 and 14 serve their sentences or receive specialized correction education?

　　At present, juvenile offenders between the ages of 14 and 18 in our country are all executed in the juvenile delinquent correctional facility (hereinafter referred to as the non-custodial facility) and receive education.

Both Pi Yijun and Guo Kaiyuan pointed out to China News Weekly that juvenile criminals between the ages of 12 and 14 who are being punished should not enter the uncontrolled prison.

　　This is precisely the common concern that some scholars insist that the age of criminal responsibility should not be lowered when they are discussing whether the age of criminal responsibility should be lowered. That is, young criminals may be "cross-infected", which will give birth to a prisoner criminal personality.

Guo Kaiyuan pointed out that juvenile criminals between the ages of 12 and 14 are young and malleable, and the education and reform for them will be different from those of juvenile criminals between 14 and 18.

These two types of juvenile offenders should be separated.

　　Regarding special correction and education, the criminal law and the law on the prevention of juvenile delinquency that are being revised need to be further defined and refined.

Fang Yan told China News Weekly that not punishing vicious cases committed by young minors is not enough to demonstrate the fairness of the law.

However, for such minors, it is still necessary to emphasize the rescue and correction, so as to prevent them from causing greater harm to the society in the future, and also to reduce the young age of minors in crime.

　　China News Weekly, Issue 39, 2020

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