Draft Amendment (XI) to the Criminal Law

On October 13, the draft Amendment to the Criminal Law (11) was submitted to the Standing Committee of the 13th National People's Congress for a second deliberation, and it is proposed that under specific circumstances and through special procedures, the legal minimum age of criminal responsibility be individually lowered. The draft stipulates that persons between the ages of 12 and 14 who commit the crime of intentional homicide or intentional injury, resulting in death, and the circumstances are egregious, shall bear criminal responsibility upon approval by the Supreme People's Procuratorate. At the same time, the draft gives overall consideration to issues related to the revision of the Criminal Law and the Law on the Prevention of Juvenile Delinquency, and reamends custody and education to specialized correctional education.

The draft stipulates that if a person is not criminally punished because he is under the age of 16, his parents or guardians shall be ordered to discipline him; When necessary, special correctional education is carried out in accordance with the law.

Current status of juvenile delinquency

In June 2019, the Supreme People's Procuratorate released the White Paper on Juvenile Procuratorial Work (2014-2019) (hereinafter referred to as the "White Paper"), showing that from 2014 to 2019, procuratorial organs across the country accepted and arrested 284569 juvenile criminal suspects and sent them for review and prosecution 383414 people, and the corresponding data showed an upward trend in 2018 and 2019 after several consecutive declines.

According to some statistics, there were 10 representative cases of vicious crimes of young minors from 2016 to 2018, such as the rape of a 13-year-old boy in Heilongjiang, the murder of a 12-year-old boy in Hengyang, Hunan Province, and the murder of a 12-year-old girl by a 13-year-old boy in Dalian. The age of the perpetrators of these cases is mainly 12-14 years old, and the types of crimes are mainly homicide, arson, and sexual assault.

Existing penal provisions

Article 17: Age of criminal responsibility

A person who has reached the age of 16 shall bear criminal responsibility for committing a crime.

Persons between the ages of 14 and 16 who commit the crimes of intentional homicide, intentional injury causing serious injury or death, rape, robbery, drug trafficking, arson, explosion or release of dangerous substances shall bear criminal responsibility.

Persons between the ages of 14 and 18 who commit crimes shall be given a lighter or mitigated punishment.

Where a person is not criminally punished because he is under the age of 16, his parents or guardians shall be ordered to discipline him; If necessary, it can also be institutionalized by the Government.

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Lawyer Xu said

In recent years, vicious cases caused by minors aged 12 or 3 have occurred from time to time, causing widespread concern in society, and calls for lowering the age of criminal responsibility in society have become increasingly loud. However, China's 97 Criminal Law says that the minimum age of criminal responsibility is fixed at 14 years old based on the general national conditions, and blindly lowering the age of criminal responsibility is a bit inverted, which cannot reflect the final bottom line guarantee and humility principle of the criminal law. Is it that if the age is lowered, young crimes will not appear? Apparently not. Crime has always been a social phenomenon that cannot be controlled by a single law.

Instead of adopting a general single reduction in the legal age of criminal law, the draft adopts "fine-tuning" measures for individual vicious cases, and revises "custody and education" to "special correctional education", reflecting the change in judicial concept from custody to correction, and also actively responding to public opinion, which is also a care for minors.

Judging from the draft, the lowering of the age of criminal responsibility in individual cases must meet the following four conditions, all of which are indispensable, specifically: first, it is limited to two types of "homicide cases" of intentional homicide, intentional homicide and intentional injury resulting in death; Second, limited to aggravating circumstances, general circumstances are excluded; Third, the suspect must be at least 12 years old; Fourth, it must be submitted to the Supreme People's Procuratorate for approval. The purpose of these four restrictions is to ensure that criminals who evade legal punishment because of their young age are combated, and that the scope of the crackdown is not expanded or abuses that cause damage to the legitimate rights and interests of minors occur.

In addition, if a person is not criminally punished because he is under the age of 16 (including, of course, under the age of 14 or younger), the original criminal law provides for ordering his parents or guardians to discipline him; In the new draft, the phrase "may also be institutionalized by the government" has been replaced by "special correctional education in accordance with the law". The crowd here refers specifically to other underage crimes that are not extreme cases.

The "special correctional education" mentioned in the draft is different from the "community correction" of control, probation, and parole, but is concentrated in specialized correctional institutions for education, which can also be said to be centralized and restricted freedom. Of course, this kind of correction is not simply restricting freedom, but supporting professional personnel to carry out psychological counseling, cultural education, positive transformation, correct mistakes, so that they can eventually return to society.

Juvenile delinquency is not a problem of a single family, but also a social problem, simply relying on the harsh punishment of the law can not fundamentally curb crime, but also need to be supplemented by a sound social guarantee and correction mechanism, the age of criminal responsibility can be fine-tuned, but the corresponding supporting system should also be established and improved, and the subsequent laws on the prevention of juvenile delinquency should also be paid attention to and reflected when amended.

After all, whether minors can eventually "become adults" also requires an adult society to reach a consensus and actively participate, which is an "adult" society.

(This article is translated by software translator for reference only.)