China Youth Justice Policy and Practice
by Sunny Lin Xiaoyu
The beginning
Since the year of 2006, the proportion of youth criminal cases in the whole criminal cases is continuously declining. But we should not be optimistic about the trend of youth crime. On one hand, the total number of youth criminal cases is continuously increasing; On the other hand, robbery, rape and stealing account for 80% of all the types of youth crimes. In view of the serious situation of youth crime and special protection for youth in China, I do research on the youth justice policy and practice as follows: There are three part for my presentation today:
1. From Laws Adopted by State Legislative Body
2. Judicial explaination issued by the Supreme People’s Court and regualations released by competent government organs, e.g. the Mininty of Public Security, the Supreme People’s Procuratorate, the Ministry of Justice and etc.
3. Youth Justice practice
1. Laws Adopted by State legislative Body
Until now China has adopted two independent laws regarding youth: the Law on the Protection of Minors (adopted at the 21st session of the Seventh National People's Congress in September 1991, revised on June 1, 2007) and the Law on the Prevention of Juvenile Crimes (adopted at the 10th session of the Ninth National People's Congress in June 1999). This marked a major progress in China's law making and reflects the full attention of the Chinese government to youth protection and youth crime prevention. Apart from above-said special laws, relevant articles on youth crimes and penalties are contained in a number of laws, including the Criminal Law, the Criminal Procedure Law.
§Criminal Law of PRC (adopted in 1997 )
Article 17 A prerson who has attained the age of 16 years shall bear criminal responsibility if he/she commits a crime.
A person who has attained the age of 14 years and is under the age of 16 years shall bear criminal responsibility if he/she commits a crime of intentional homicide, intentionally injuring another person to serious bodily injury or death, rape, robbery, selling drugs, arson, explosion or spreading poison.
A person who has attained the age of 14 years and under the age of 18 years shall be sentenced lightly and mitigatively if he/she commits a crime.
If a person commits a crime and is not sentenced criminally because he is under the age of 16 years, his/her parents or legal guardian shall be ordered to control and educate him/her, and when necessary, he/she may be taken in by government for education.
Article 49
The death penalty shall not be applied to a person who has not attained the age of 18 years at the time when he/she commits a crime.
§the Criminal Procedure Law of PRC (adopted in the year of 1997)
Article 14
The People’s Court, the People’s Procuratorates and the Public Security Organs shall safegard the procedural right to which participants in proceding are entitled according to law.
In cases where a minor under the age of 18 years commits a crime, the legal gardian of suspect and of the defendant may be notified to be present at the time of interrogation and trial.
Article 34
If the defendant is a minor, and doesn’t entrust a lawyer, the People’s Court shall designate a lawyer who is obligated to provide legal aid.
Article 152
No cases involving crimes committed by minors who has reached the age of 14 but not the age of 16 shall be heard in public. Generally no cases involving crimes committed by minors who has reached the age of 16 but not the age of 18 years shall be heard in public.
§Law on the Protection of Minors(adopted on Dec 29, 2006)
Article 50 Public security organs, people's procuratorates, people's courts and judicial administrative departments shall perform their duties according to law, and protect the lawful rights and interests of minors in judicial activities.
Article 54 To the minors who have broken the law or committed crimes, the guidelines of education, persuasion and redemption shall apply, and the principle of taking education as the main method and punishment as the subsidiary shall be adhered to.
The minors who have broken law or have committed crimes shall be given lighter, mitigated penalties or be exempted from penalties according to law.
Article 56 A public security organ or people's procuratorate shall, when interrogating a minor criminal suspect or inquiring a minor witness or the victim, notify the guardians to be on the spot.
Article 57 The minors who are under custody or are serving a sentence shall be locked up separately from adults.
Where the minors who are under custody or are serving a sentence have not completed compulsory education shall receive the corresponding education in the place of custody or prison.
Article 58 In the event of a case on a crime committed by a minor, the news report, film or radio program, public publication, or website, etc. shall not disclose the minor's name, domicile, photos, images, and other materials from which the minor might be traced.
Article 59 The correction and cure of minors' serious bad acts and the prevention of their criminal acts shall be governed by the law on the prevention of juvenile delinquency.
The laws embody the spirit of leniency and light penalties with regard to youth criminal cases.
2. Judicial explaination issued by the Supreme People’s Court and regualations released by competent government organs, e.g. the Mininty of Public Security, the Supreme People’s Procuratorate, the Ministry of Justice and etc.
2.1 In order to protect the lawful right of youth, educate the youth criminals and handle youth criminal cases strictly in conformity with relevant laws, the Ministry of Public Security issues Rules on the Handling of Youth Criminal Cases in the year of 1995. The rule specifies the followings six points:
(1)When handling youth criminal cases, the public security organs shall educate the youth, provide consulation and help for youth and explicitly notify the youth of their legal right and obligation.
(2)When handling youth criminal cases, threat, intimidation, lure, deception and other illegal meaasures to collect evidence is strictly forbidden. Extorting a confession by torture is absolutely forbidden.
(3) When handling youth criminal cases, the fame of the youth shall be protected and names, domiciles and photos shall not be publicly disclosed.
(4) There shall be special department and personels in public security organs to handle youth criminal cases. Special personels shall possess konwlege of psychology, criminology, pedagogy (教育学) and also possess experience of handling cases. When handling youth criminal cases, compulsory measures shall be strictly limited and minimized. When handling youth criminal cases, Investigation and inquiry to students in schools shall not influence the nomal study.
(5) Youth crimianls in custody shall be seperated from adults and shall be taken care in respect of living and study.
(6) When handling youth criminal cases, in priciple, restraints shall not be used.
2.2 The Supreme People’s procuratorate revised Rules on Handling Youth criminal cases in the year of 2007. The rule specified the principle of “regaring youth criminal cases, public prosecution shall be cautiously used.
2.3 The Supreme People’s Court issued “Interpretation of Problems Concerning the Applicable Laws in Handling Youth Criminal Cases in the year of 2006. The Interpretation emphasizes the principle of “education, supplemented by punishment”. There are 7 points I shall introduce here:
(1) The youth forcefully ask for money or materials from others shall not be regarded as crime;
(2)The youth steal property of his/her own family or other immediate relatives may not be treated as crime;
(3) The youth who committs crime of robbery may be mitigated in respect of penalty If the circumstances are minor;
(4) The youth criminals shall not applied to life imprionment;
(5) The fine penalty imposed on the youth criminals shall be mitigated;
(6) In the following three circumstances, the court shall sentence probation to youth：
The first time to committ crime;
Actively compentate losses for the victim;
Can be bettered by help and education.
(7) In the following xix circumstances, the youth criminals shall be immuned from criminal penalty:
Deaf and dumb, the blind, unjustifiable self-defense, prepare to committ a crime. Suspension of a crime, an accessory of common crime, confess one’s crime and other minor circumstances.
3. China youth justice practice
In this part, I don’t want to mention what the public seurity, procuratorate organ, the court do in handling youth criminal cases since I have systmatically explained relavant laws and regulations in the first two parts. In practice, judicial organs perform their duties strictly in accordance with above-mentioned laws and regualtions. In the part, I will introduce two points: legal aid regarding youth who committ a crime and sponsored by social organizations, youth justice pilot projects are conducted in some areas.
(1) legal aid regarding youth who committ a crime
At present, legal aids are mainly provided at the stage of trial. On one hand legal aid at the stage of trial shall be furthered improved and perfected. On the other hand, legal aid shall be provided before trial. That is to say, at the stage of investigation and prosecution legal aid shall be provided for youth.
At the stage of trial, the procecution opinion has been formed and the evidence is fixed, so the task of defense lawyer is mainly to go through the procedure and the quality of legal-aid is hard to guarantee and lawful right of youth criminals is hard to safegard. Furthermore, at the stage of ivestigation, what the suspect confess plays decisive role at the stage trial, but the youth suspect is not mature and lack of life experience, so legal aid for youth should be provided before trial. In practice, Banan district of Shenzhen, Fengtai district of Beijing, Pudong Doistrict of Shanghai, Shapengba of Chongqin, Taiyuan city have developed pilot pre-trial legal aid project.
(2) sponsored by social organizations, youth justice pilot projects are conducted in some areas
some international NGOs and other kinds of social organizations, like “Save the Children” successfully organize pilot project regarding youth justice between June 2002 and October 2009, a result of joint efforts between the Panlong District government of Yunnan Province and the Save the Children China Programme. The project worked with a number of government departments to offer legal protection to young offenders and create opportunities for diversion. The project worked on a number of levels: development of community support mechanisms enabled young people in conflict with the law to make a fresh start, receiving help from within their own communities rather than serving penalties in prison; research was undertaken to investigate the increasing social, family and educational factors behind why young people commit crimes; and crime prevention work was implemented harnessing the results of research.
Over the last few years there has been a marked downward trend in the numbers of juvenile offenders in the Panlong area. According to data collected by the pilot office, the numbers of cases of suspected and actual juvenile offenders heard by the Panlong Public Security Bureau reduced from 590 in 2005 to 161 during January and August 2009. The percentage of Panlong young people involved in court proceedings reduced from 16% in 2005 to 9% during the period 2006 to 2008. The pilot project really benefit the youth and also accerate the pefection of youth justice system in China.
The conclusion
As a Chinese lawyer, I deeply knows that the youth is the future of the country and the hope of the nation. The strong of the youth, the strong of the country and the prosperous of the youth, the properous of the nation. Judicial protection is very important because without judicial protection, the complete protecion for the youth can not be achieved. But without social protection, judicial protection cannot be smoothly practiced. Complete and smooth youth protection needs combination of judicial protection and social protection. Thus prevent and mitigate youth crimes and realize the effective protection for youth.
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