TOO YOUNG TO LOCK UP?

Zhao hui, LaWyer at the Beijing LegaL aiD anD research center for juVeniLes

Dr. Wang Wenhua, Professor of LaW, Vice Dean of the schooL of LaW at Beijing foreign stuDies uniVersity, MeMBer of the counciL of chinese criMinaL LaW society

TOO YOUNG TO LOCK UP?

Zhao hui, LaWyer at the Beijing LegaL aiD anD research center for juVeniLes

Dr. Wang Wenhua, Professor of LaW, Vice Dean of the schooL of LaW at Beijing foreign stuDies uniVersity, MeMBer of the counciL of chinese criMinaL LaW society

in the last several years, juvenile delinquency has been on the rise, and as it appears more frequently in the public eye, the types of crimes have become more diverse. The criminal methods are sophisticated, and the extent of violence is increasing. In view of such a situation, there is a groundswell of support for the idea of lowering the age of criminal responsibility. Supporters think that it acts as a deterrent while opponents think it enlarges the scope of the law and labels kids as criminals.

In May 2016, the Supreme People’s Procuratorate gave their answer: A decrease in the age for criminal liability will require wide-scale experimentation and research. That’s definitely a cautious statement. But the legislature will eventually have to make a final decision—to decrease or not? From a utilitarian perspective, decreasing the age of criminal liability can act as a deterrent on juvenile crime in the short term, but as the law and the study of criminology develop, there are no clear statistics that show a positive or negative correlation between degree of criminal liability and amount of underage crime.

But that doesn’t mean that the age of responsibility can’t or shouldn’t be decreased.

Because it’s necessary for Criminal Law to be just, it’s necessary to decrease the age of criminal liability for serious crimes. Criminal legislation should pay attention to both the actor and the criminal act. From the perspective of the actor, minors merit special considerations as they are immature physically and mentally. But seen from the criminal act and its consequence, underage criminal behavior violates the law just the same as adult behavior. Today’s minors, who are mature at an early age, should take criminal responsibility so that the principle of “the punishment fitting the crime” can really be achieved.

When we talk about underage crime, we can’t just focus on education and reform. Actually, criminal penalties are a form of education—which can also prevent crime. We shouldn’t take punishment and prevention as opposites.

As for the “side effects” of decreasing the age of criminal liability—like lifelong stigma or difficulty reintegrating into society—we are not without solutions. For example, Article 100 of Criminal Law states that any person who is given a criminal punishment shall, when joining the army or getting a job, report truthfully whether they have ever been criminally prosecuted and shall not conceal the fact. But when it comes to crimes committed as minors, the obligation of reporting is discharged. Community regulations and the careful procuratorial and trial work on underage crime all provide procedural protection for minors who have entered the justice system.

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.

是否應該降低刑事責任年齡？

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.