Reconstruction of China's juvenile criminal punishment system under the criminal policy of combining leniency with severity
Maganlong
Introduction:
Juvenile delinquency, as the third social public hazard after environmental pollution and drug abuse, has attracted extensive attention and attention from all countries and social circles in the world. [Kang Shuhua: Juvenile Delinquency and Governance, Renmin University of China Press, 2000, p. 1. In recent years, the situation of juvenile delinquency in China has become increasingly severe, and it is showing a trend of younger age. According to the statistics of China Juvenile Delinquency Research Association, from 1998 to 2003, the average age of juvenile delinquency in China decreased by 2 years. In 2005, juvenile delinquency accounted for 74% of the country's criminal offences, of which 14- 18 years old juvenile delinquency accounted for more than 70% of the total number of juvenile crimes. [Frontiers of Criminal Law, page 3 13. Therefore, effectively preventing and correcting juvenile delinquency has become the key to safeguarding human rights and building a harmonious society. Looking at China's criminal law, the penalty system for juvenile delinquency is set up on the basis of adult delinquency, which will inevitably make the correction of juvenile delinquency overemphasize the role of penalty, only see the punitive and severe nature of penalty and ignore the particularity of minors due to their immature physical and mental development, and unilaterally pursue the function of penalty in order to achieve the purpose of penalty prevention as soon as possible. However, I don't know that this kind of punishment applicable to adult criminals deprives minors of their legitimate rights and interests at a deeper level and does not play a good role in education and prevention. On the contrary, it is a great challenge to human rights. Therefore, it is necessary for us to reconstruct the existing juvenile penalty system and emphasize the frugality of juvenile penalty allocation, so as to safeguard the rights and interests of minors to a greater extent and realize the double harvest of social interests and juvenile interests.
It is the only choice for China to learn from foreign legislation and judicial practice, conform to the world trend and reduce juvenile delinquency. But our so-called mitigation is not blindly emphasizing "light punishment", but under the guidance of the criminal policy of combining leniency with severity. The criminal policy of combining leniency with severity is the product of human rationality in the criminal field and the embodiment of the degree of social legal civilization. It emphasizes the modesty and humanity of punishment, and its specific content is embodied in combining leniency with severity. The so-called "leniency" means leniency, tolerance and leniency, which means that some minor crimes should be given a lighter punishment; For some crimes that should be severely punished, if there are some statutory and discretionary lighter circumstances, they should also be treated leniently. The so-called "strictness" means strictness, severity and seriousness, that is, punishment is strictly in accordance with the provisions of the law, and those who are guilty will be punished. It is emphasized that the criminal policy of combining leniency with severity requires comprehensively implementing three basic principles: a legally prescribed punishment for a crime, a balanced crime and punishment, and equal application of laws, and adhering to the general trend of leniency and being strict with self-discipline; Treat them differently according to different criminal facts. The width is wide, the strictness is strict, the width is wide, and the width is wide.
Specific to juvenile delinquency, in view of their immature physical and mental development and weak ability to distinguish right from wrong and self-control, when dealing with juvenile delinquency cases, we must adhere to the principle of "education, probation and salvation" and implement relatively light penalties, with special emphasis on the use of non-penalty measures to effectively prevent and contain juvenile delinquency, protect the legitimate rights and interests of minors and maintain the stability of social order.
The first chapter is an overview of juvenile criminal punishment system.
With the grim situation of juvenile delinquency, it has attracted more and more attention from the international community. Because minors have their own unique physical and mental characteristics, the criminal punishment system for minors, which was originally based on adults, is bound to have great disadvantages. Therefore, the construction of a penalty system that conforms to the characteristics of minors has become an important means to effectively prevent and curb juvenile delinquency, and it is also a major legal issue facing criminal legislation and justice at present. But first, we need to define the concept of juvenile delinquency. Because the penalty system of juvenile delinquency is generally a penalty system suitable for the particularity of the subject, the definition of this concept is the premise of the reconstruction of the penalty system of juvenile delinquency.
First, the connotation of juvenile penalty system
(A) the concept of juvenile delinquency
What is juvenile delinquency? Different countries have made different definitions according to their own political, economic and cultural traditions. Anglo-American countries pioneered the modern juvenile legal system, [Zhu: a new discussion on juvenile incident handling law], Sanmin Bookstore Co., Ltd., 1976 edition, p. 3. They believe that juvenile delinquency refers to the behavior of minors who should be punished and guilty, including both the behavior of minors who violate the criminal law and the illegal behavior with criminal tendency but not violating the criminal law, which is closely related to the identity of minors, that is, "status crime." For example, Article 1 of the Juvenile Law of the United Kingdom stipulates: "The juvenile referred to in this Law refers to a person who is under 18 years of age at the time of committing a crime" [Zhang: Criminal Responsibility of Juvenile Delinquency, Intellectual Property Press, 2008, p. 1 page. ]。 Chapter 40 of the Juvenile Delinquency Law of the United States also stipulates: "The juvenile referred to in this chapter refers to a person under the age of 18" [Xie Tong: Juvenile Delinquency and Sentencing, People's Court Press, 2002, p. 2. ]。 The World Encyclopedia of the United States explains juvenile crimes as "generally speaking, the so-called juvenile crimes include stealing cars, property and other acts, but if these acts are committed by adults, they are regarded as crimes." It also includes some behaviors such as staying outside or drinking alcohol after curfew, but these behaviors are illegal for both boys and girls. Juvenile delinquency also includes teenagers' opposition to social norms, regardless of whether such behavior is legal or illegal. [Xie Tong: Juvenile Delinquency and Sentencing, People's Court Press, 2002, p. 2. The common law system defines juvenile offenders in this way because it focuses on prevention rather than punishment, downplays sanctions and emphasizes correction and education. Civil law countries, such as Germany and Russia, believe that juvenile delinquency only includes acts committed by minors that violate the criminal law and seriously endanger society and should be punished, excluding the "status crime" advocated by anglo-French countries that violate the juvenile law. For example, Article 4 of the Juvenile Criminal Law of the former Federal Republic of Germany stipulates that "whether a minor's illegal act is a crime or a fault and the issue of prescription shall be dealt with in accordance with the general criminal law." Zhang: Criminal Responsibility of Juvenile Delinquency, Intellectual Property Press, 2008, p. 2. In other words, what is juvenile crime is dealt with in strict accordance with the relevant provisions of the criminal law, regardless of "identity crime." "Paragraph 2 of Article 87 of the Russian Criminal Law also stipulates that" minors who commit crimes can be sentenced to punishment, and compulsory measures of educational probation can also be applied to them. " Zhang: Criminal Responsibility of Juvenile Delinquency, Intellectual Property Press, 2008, p. 3. The starting point of the age of criminal responsibility in Germany and Russia is 14 years old, that is, in these two countries, juvenile delinquency refers to the acts committed by people over 14 years old but under 18 years old.
Due to the influence of historical tradition and current economic and political factors, the concept of juvenile delinquency in Hong Kong, Macao and Taiwan has different definitions in their respective criminal laws. According to the provisions of the Law on Handling Minor Incidents in Taiwan Province Province, juvenile delinquency refers to acts committed by people above 12 and below 18 that violate the criminal law. The legal system of China and Hongkong is deeply influenced by Britain, which stipulates that the relative age of criminal responsibility is over 7 years old 14 years old. Specifically, it is a crime for minors of this age to knowingly commit acts with obvious social harm. In other words, the juvenile delinquency stipulated in Hong Kong criminal law refers to the behavior that children who have reached the age of 7 but are under the age of 14 should be punished for violating the criminal law. [Zhao Bingzhi: Hong Kong Criminal Law, Henan People's Publishing House, 1997, p. 54. ] According to Article 18 of Macao Criminal Code, "People below 16 are not liable", it can be seen that juvenile delinquency in Macao refers to criminal acts committed by people above 16 but below 18.
The concept of juvenile delinquency in Chinese mainland is not clearly defined in the criminal law, but the age of criminal responsibility is divided into three parts: 14 or below, 14 or above but 16 or above. Among them, "a person who has reached the age of 16 commits a crime and shall bear criminal responsibility. A person who has reached the age of 14 and is under the age of 16 shall bear criminal responsibility if he commits the crime of intentional homicide, intentional injury, causing serious injury or death, rape, robbery, drug trafficking, arson, explosion or throwing dangerous substances. " It can be seen that the starting age of criminal responsibility in China is 14 years old. According to the stipulation of "Minors refer to people under 18 years old" in China's Constitution, it can be concluded that juvenile delinquency in China refers to illegal and criminal acts committed by minors under 14 years old 18 years old, which has serious social harm and should be punished according to law. Specifically, juvenile crimes in our country include intentional homicide, intentional injury causing serious injury or death, rape, robbery, drug trafficking, arson, explosion, throwing dangerous substances, and all acts prohibited by the criminal law of people above 16 and below 18.
(B) the definition of juvenile criminal punishment system
As the cornerstone of criminal law theory, penalty constitutes the basic category of criminal law together with crime, which is also the fundamental reason why criminal law is more severe than other legal sanctions. Criminology only stipulates which acts are prohibited by criminal law and which acts can be regarded as crimes. How to punish and prevent criminal behavior, in the final analysis, lies in the deterrent power of punishment, that is, through the four processes of punishment, seeking punishment, sentencing and execution to combat crime, so as to achieve the purpose of general prevention and special prevention of punishment. Among them, the formulation of punishment refers to the static legislative process in which the highest legislature of the country formulates laws and sets the types of punishment; Seeking punishment means that after the defendant is found guilty, the public prosecution organ puts forward specific and clear sentencing opinions to the criminal according to the comprehensive case; Sentencing refers to the determination and discretion of whether, what kind of punishment and multiple punishments are imposed on the offender on the basis of the determination of the crime and according to the relevant provisions of the criminal law; Execution, also known as penalty execution, refers to putting the penalty determined by the effective criminal judgment into practice according to law. Due to the different time periods, these four stages must have different functions and exist independently, but they are interrelated and indispensable in the specific judicial application.
Therefore, the author believes that the so-called penalty system refers to the system of penalty types, penalty discretion and penalty execution. Specifically, the penalty system for juvenile delinquency refers to the types, discretion and execution of penalties for juvenile delinquency. To sum up, the act of punishing people who have reached the age of 14 but have not reached the age of 18 in Chinese mainland is defined as juvenile delinquency. We can define the penalty system of juvenile delinquency in China as a legal system for convicting, sentencing and executing punishment for people who have reached the age of 14 but have not reached the age of 18, including penal measures and non-penal measures.
(C) the origin and development of the juvenile criminal punishment system
The criminal punishment system of juvenile delinquency did not come into being with the appearance of criminal law, but gradually attracted widespread attention from all walks of life, including law, psychology and sociology. As a result, the criminal punishment system for juvenile delinquency has emerged and developed, and it has been continuously enriched according to the changes of economic, political and cultural factors in various countries in the world.
Since the establishment of 1945, the United Nations has been committed to protecting children all over the world, especially the legitimate rights and interests of juvenile offenders, and has successively formulated and adopted a series of conventions to protect children's rights and interests, especially the Declaration on the Rights of the Child adopted by 1959, which confirmed that the principle of the best interests of children is the international guiding principle for protecting children's rights. Since then, rules such as the Convention on the Rights of the Child, the Standard Minimum Rules for Juvenile Justice (Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) have been adopted, laying the foundation for further standardization of the United Nations guidelines for juvenile justice.
The United Nations Guidelines for Juvenile Justice are very rich in content, which mainly emphasizes that "when considering juvenile cases, their welfare should be the leading factor" (Beijing Rules 17. 1d), so as to realize "the best interests of children". It is embodied in five aspects: (1) It emphasizes the use of imprisonment as little as possible: "Putting minors in prison institutions should always be the last resort, and its duration should be the shortest possible necessary time" (Beijing Rules 19. 1), which limits imprisonment in terms of quantity and time, which well reflects the fourth resolution of the Sixth United Nations General Assembly. "Minors shall not be deprived of their personal freedom unless they are convicted of serious acts involving violence against others, or have repeatedly committed other serious crimes, and other appropriate measures cannot be taken against them" (Beijing Rules 17.438+0C). (2) Prohibition of torture: "Minors shall not be sentenced to death for committing any crime" (Beijing Rules 17.2). "No corporal punishment shall be imposed on minors" (Beijing Rules 17.3). "Only after careful consideration can the personal freedom of teenagers be restricted, and the degree of restriction should be as low as possible" (Beijing Rules 17. 1B). "No child shall be subjected to torture or other forms of cruel, inhuman or degrading treatment or punishment. /kloc-people below 0/8 commit crimes and shall not be sentenced to death or life imprisonment without possibility of release; No child shall be deprived of his liberty illegally or arbitrarily. The arrest, detention or imprisonment of children should be in accordance with the law, and should only be used as a last resort and for the shortest possible time (Article 37A of the Convention on the Rights of the Child). b)。 (3) Emphasize non-penalty punishment. "Minors shall not be partially or completely separated from their parents' supervision unless their cases require it" (Beijing Rules 18.2), relying on and appealing to the community to effectively implement the measures of reeducation outside prison, and gradually improve the community-based transformation. " Volunteers, voluntary organizations, local institutions and other community resources should be mobilized to make effective contributions to the reform of juvenile offenders within the community and as far as possible within the family. "(Beijing rule 25.2). The United Nations Standard Minimum Rules for Juvenile Justice clarifies the most basic principles and restrictions of the international community on the treatment of juvenile offenders, and points out that non-custodial penalties should be applied more and individualized treatment should be applied. (four) to protect the legitimate rights and interests of children in the process of litigation. "Every case should be dealt with quickly from the beginning without any unnecessary delay" (Beijing Rule 20.438+0). Efforts should be made to provide young people with accommodation, education or vocational training, employment or any other useful practical assistance at all stages of litigation, so as to promote the reform process "(Beijing Rules 24. 1). All children deprived of their liberty have the right to prompt access to legal and other appropriate assistance, the right to challenge the lawfulness of their deprivation of liberty before a court or other independent and impartial competent authority, and the right to decide any such action promptly (article 37D of the Convention on the Rights of the Child). (5) Protect children's privacy. Their privacy is fully respected at all stages of the proceedings (Article 40.2A of the Convention on the Rights of the Child).
Under the strong coordination and guidance of the United Nations, the international community gradually tends to deal with juvenile delinquency gently, abandoning the disposal method that has always emphasized punishment and punishment for juvenile delinquency, and paying more attention to the particularity of juvenile offenders. When dealing with such cases, "the response measures should be commensurate not only with the situation and seriousness of the crime, but also with the situation and needs of minors and the needs of society" (Beijing Rules 17. 1), emphasizing the non-penalization and non-imprisonment of juvenile delinquency, and taking criminal punishment as the last resort. Many of the above provisions have been absorbed by China's current criminal punishment system for minors.
The establishment of the punishment system for juvenile delinquency in China has also gone through a long process, although there were some provisions on juvenile delinquency in ancient times, such as the Western Zhou Dynasty: "seventy years old, eighty or ninety years old, seven years of mourning." Although mourning is a crime, there is no additional punishment. [/sfw/shownews.asp? NewsID=9580] That is, children under 7 years old, elderly people over 80 years old and elderly people over 90 years old commit crimes with impunity. "The Great Discussion on the Law of the Tang Dynasty stipulates that those over the age of 8 who are under the age of 1 1 commit capital crimes such as rebellion and murder can" request "the emperor to reduce the punishment, and those who commit crimes such as robbery or theft and murder can be redeemed, and other crimes are not criminally responsible; People under the age of 8 have no criminal responsibility at all. However, there is no systematic punishment system for juvenile delinquency. With the reform and opening up and social transformation, China's existing juvenile criminal punishment system has experienced a tortuous and complicated development process. 1in the middle of 979, the policy of educating, saving and reforming juvenile offenders mentioned in the Report on Calling the Party to Pay Attention to Solving Juvenile Delinquency forwarded by Publicity Department of the Communist Party of China, the Ministry of Education, the Ministry of Culture, the Ministry of Public Security, the State Administration of Labor, the All-China Federation of Trade Unions, the Central Committee of the Communist Youth League and the All-China Women's Federation was established as the criminal punishment system for juvenile offenders in China. 1984 1 1 The juvenile court, the first institution in China specializing in juvenile criminal cases, was established in the criminal trial court of Changning District People's Court. [The Road to Juvenile Court in China, edited by Shanghai Changning District People's Court, People's Court Press, 1994, p. 4. 1In July, 1987, the district court established the first juvenile criminal court on the basis of juvenile court, which was quickly popularized throughout the country. By 2004, there were more than 2,400 juvenile courts in China. [See "The Comprehensive Governance System for Juvenile Delinquency is gradually improved", quoted from Xinhuanet/News Center/,and last visited on May 5, 2008. In the aspect of legal system construction, a juvenile justice system with China characteristics has been formed. For example, Article 54 of the Law on the Protection of Minors clearly stipulates: "For minors who commit crimes, the policy of education, probation and salvation shall be implemented, and the principle of giving priority to education and supplementing punishment shall be adhered to", which once again reaffirms the guiding ideology of China's juvenile criminal punishment system. Its essence is "to require the political and legal organs to take the education of minors who commit crimes and reform their minds as their fundamental task, and enthusiastically educate, reform and save minors who commit crimes and crimes." Xie et al. Research on China's Criminal Policy, China People's Public Security University Press, 267 (2006). Article 44 of the Law of People's Republic of China (PRC) on the Prevention of Juvenile Delinquency stipulates: "When handling juvenile delinquency cases, judicial organs shall ensure that minors exercise their litigation rights and obtain legal help, and conduct targeted legal education according to their physical and mental characteristics and criminal situation. Minor students who have been subjected to criminal compulsory measures shall not be revoked their school status before the judgment of the people's court takes effect. [/legal/2003-0 1/2 1/content _ 699658 . htm]。
] involves the problem of preventing minors from committing crimes again. Article 14 of the Criminal Procedure Law stipulates that "the legal representative of the criminal suspect and the defendant may be notified to be present during interrogation and trial of a case in which a minor under the age of 18 commits a crime", which guarantees the legitimate rights and interests of minors in the criminal trial process. In the sixth chapter, the prison law also emphasizes the principle of giving priority to the education and reform of juvenile offenders, and stipulates specific measures to correct juvenile delinquency. In 2003 and 2004, China successively issued the Notice on Launching the Pilot Work of Community Correction and the Interim Measures for Community Correction by Judicial Administrative Organs, and paid attention to juvenile offenders as the key objects of community correction. In 2006, the Supreme People's Court implemented the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Juvenile Criminal Cases, which once again showed the policy of "educating, probation and saving" juvenile crimes, further standardized and promoted the development of juvenile criminal trial procedures in China, and improved the juvenile criminal punishment system to a certain extent.
Looking at the current legislative and judicial situation in China, there are many laws on the punishment of juvenile delinquency, and the overall trend is in line with the international trend of reducing juvenile delinquency. Regrettably, the relevant regulations are scattered, and a complete punishment system for juvenile delinquency in line with China's national conditions has not yet been formed. Therefore, it is necessary to make some achievements in this respect in order to solve the increasingly serious social problem of juvenile delinquency in China.
Second, the value orientation of juvenile criminal punishment system