TO LOCK UP?

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

The World of Chinese - - Counterpoint -

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?

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