TO LOCK UP?

ZHAO HUI, LAWYER AT THE BEIJING LEGAL AID AND RESEARCH CENTER FOR JUVENILES

First of all, protecting the legal rights of minors is a precondition for preventing underage crime, but the current legal system and public opinion pay more attention to underage crime than the violation of juvenile rights. I think they are two sides of the same coin.

Strengthening the protection of minors’ legal rights reflects the level of civilization of our society, but also serves as an effective measure to prevent juvenile delinquency. I have met a lot of minors involved in crime whose legal rights had been violated before they resorted to crime: for example, by parents who don’t fulfill their duties of guardianship, who abuse, abandon, or neglect their children, and let children drop out of school or enroll them in child labor. And even at school there are problems, like violation of the right to be educated, corporal punishment, and discrimination.

Compared with adults, minors’ criminal behavior has a closer and more direct relation with their environment and the behavior of others around them. Their guardians, school, and all sectors of the society should bear more responsibility. Before we are fully prepared to protect the legal rights of minors, it’s reckless to simply decrease the age of criminal responsibility.

There is also currently a lack of effective measures to prevent underage crime. A minor doesn’t become a criminal by accident. When minors engage in delinquent acts which don’t yet qualify as a crime, we lack effective interventions. Criminal penalties are a last resort. Juvenile justice systems in some other countries have a “tolerant but not indulgent” orientation, which values rehabilitation more than penalties. “Tolerant” refers to the tolerant spirit of the Criminal Law; “not indulgent” means using education rather than prosecution. Not imposing criminal penalties doesn’t mean the law doesn’t intervene. We just lack in-between measures to prevent juveniles from turning to crime.

Lastly, a conclusion without enough empirical research is unscientific. So far, we don’t have the statistics about minors under the age of 14 who commit criminal acts. It has grabbed wide public attention just because of the media exposure, but it’s unscientific to conclude that such behavior is on the rise.

Before the right protection and prevention practices are undertaken, it’s unfair to simply decrease the age of criminal responsibility and use criminal penalties as the first solution.

According to Article 17 of China's Criminal Law, a person under the age of 14 old cannot be held criminally liable for the crime they commit. However, a person between the ages of 14 and 16 can bear criminal liability for serious crimes such as intentional injury, rape, robbery, drug trafficking, and arson. Some are calling for the age of criminal responsibility to be lowered, while others find it unjust to do so.

是否应该降低刑事责任年龄？