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Original title: State of law | Lowering the age of criminal responsibility does not mean that all criminal minors will be sent to prison
Image source: Visual ChinaReporter | Zhao Meng
Edit | Zhai ruimin
On October 13, 2020, the second draft of the Amendment to the Penal Law (11) (referred to as the “Project”) was presented to the 22nd session of the 13th National People’s Congress for deliberation. The project plans to individually reduce the legal minimum age of criminal responsibility.
The “Draft” stipulates that if a person who has turned 12 but not 14 commits the crime of intentional homicide or intentional injury, causing death, and the circumstances are bad, the Supreme Public Prosecutor’s Office will incur criminal responsibility. At the same time, issues related to the revision of the Criminal Law and the Juvenile Delinquency Prevention Act will be considered in general, and the custody reform and education has been revised to specialized correctional education.
Serious crimes committed by minors have occurred from time to time in recent years, and this “Draft” provision has also sparked heated discussion after publication.
According to a criminal law expert who participated in the first review of the “Draft”, he told Jiemian News that the provision to lower the age of criminal responsibility was added to the second review. In fact, it was not mentioned in the first review. There were opponents at the time. It is believed that there is no data to show that the number of juvenile delinquency has changed significantly from the past, due to the various extreme cases that have occurred throughout the country, there is no need to respond at the legislative level. However, this expert also believes that this time the legislator responds to citizens’ demands with deeper political considerations.
Gao Yandong, Executive Director of the Zhejiang University Criminal Law Institute, is positive about this amendment. He had previously suggested that the age of criminal responsibility should be lowered to 8 years for vicious criminal offenses like murder and rape.
Gao Yandong told Jiemian News that, judging by the level of physical development and psychological cognition, contemporary minors are generally more capable of identification and control than before, and have acquired criminal responsibility before. The cognitive level of 10-year-olds today is equivalent to that of 14-year-olds when the Criminal Law was enacted in 1979. Previously, the General Principles of Civil Law lowered the minimum age for people with limited capacity for conduct. civil from ten to eight years. Lowering the age of criminal responsibility is also a requirement for legal uniformity.
However, Pi Yijun, a professor at the China University of Political Science and Law and director of the Center for Juvenile Crime and Juvenile Justice, said he disagrees with the idea of a “severe punishment” of lowering the age of criminal liability in a “unique” way. The regulations only deal with juvenile offenses in terms of procedures and sentencing, and they remain an obstacle to dealing with adult offenses.
According to Pi Yijun, the issue of juvenile delinquency belongs to the realm of the juvenile justice system. From the perspective of criminology, the treatment of juvenile delinquency should be a comprehensive assessment of the consequences of the crime and the cause of the crime, and pay attention to the consideration of the cause of the crime. Dealing with juvenile crime is the biggest difference from adult crime. “For example, if a minor kills, it depends on whether he is stimulated, instigated or countered by bullying. Of course, if it is multiple injuries, robberies and subjective cruelty is strong, then he should be punished.” Pi Yijun Say.
However, Gao Yandong pointed out that lowering the age of criminal responsibility does not mean that all criminal minors are sent to prison. The procedure “approved by the Supreme People’s Prosecutor’s Office” stipulated in the Amendment to the Penal Law is equivalent to the early intervention of the inspection agency, which can control some minors. The scope of a person’s criminal responsibility, “if the victim is at fault and shows regret, or his mental development is immature, the superior prosecutor may not approve.” He also suggested that while lowering the age of criminal responsibility, custody and education should also be improved. The system allows juvenile offenders to obtain compulsory education.
Gao Yandong said that current amendments to the Penal Law established procedural regulations for rebates, and detailed rules and additional judicial interpretations are needed for specific implementation. He specifically mentioned that in addition to looking at the consequences of juvenile crimes, it is also necessary to assess the level of mental development of minors to see if they have reached the state of assuming criminal responsibility. He suggested that the Supreme People’s Prosecutor’s Office could bring in psychologists and medical experts to assess the mental and physical conditions of the minor suspects during the approval stage.
Pi Yijun also suggested that in the approval stage by the highest prosecution, professionals in psychology, behavior, criminology, etc. can organize to carry out a scientific identification and assessment of the mental and physical conditions of minors suspected of crimes, not just Let the judiciary make a decision. If the team of experts assesses that they have reached the level of criminal responsibility, they must learn of the foreign rule of “malicious extra age” and turn it over to adult courts for trial.
“Maliciously supplementing age” is a set of rules for British and American countries to determine whether minors under a certain age are criminally liable. That is, if the prosecution presents relevant evidence to show that the minor was malicious and capable of distinguishing good from evil, good and evil, then the presumption that he was not capable of criminal responsibility can be annulled and the minor must assume responsibility for behavior. criminal responsibility.
In the case “A 13-year-old boy from Dalian who murders a 10-year-old girl”, Tian Canjun, a lawyer representing the victim and a lawyer from the Beijing Tian Guo Law Firm, was interviewed by Jiemian News. He also expressed support for the latest amendments to the “Draft”, believing that it is a reference to international experience. It is also a response to the frequent problem of juvenile delinquency in recent years.
On October 20, 2019, a 13-year-old boy from Dalian, Cai XX, killed a neighbor’s 10-year-old girl, Wang, and threw her body into the bushes. Because Cai was under the age of legal criminal responsibility, the police implemented custody and parenting of Cai for 3 years. According to numerous media, the murderer Cai Moumou was 1.70 meters tall and weighed almost 140 kilograms, did not differ from an adult and was accused on numerous occasions of harassing neighbors.
Tian Canjun said Cai Moumou turned 14 with a time difference of two months. If he is treated in accordance with the latest provisions of the “Draft”, it is clear that Cai Moumou may be criminally liable. As Cai’s custody and rehabilitation is still in the implementation stage, if the amendment to the criminal law is passed on time and the retroactive effect is relaxed, Cai can still be sentenced.
