Home Law International Handbook of Juvenile Justice
THE LEGAL STATUS OF JUVENILES
With modernization and recent legal reconstruction, China has developed many unique features of its legal system with three sources of influence: its traditional culture, its socialist values, and its structure similar to that of Romano-Germanic legal family. Its laws are national in nature. Several laws indirectly or directly concern youth and juvenile delinquency: the Constitution, the Public Security Administration Punishment Law, the Criminal Law, the Criminal Procedure Law, the Law on the Protection of Minors, and the Law on Prevention of Juvenile Delinquency. The Constitution is concerned with children’s rights in general and does not have specific provisions on how to deal with delinquent youths. As the country’s basic law, the Constitution has several provisions on the rights of youth including the right to receive education (Article 46), parents’ responsibility to raise and educate children (Article 49), and the state’s responsibility to protect children from maltreatment (Article 49). For example, Article 46 of the Constitution stipulates that the state promotes the all-round development of children and young people, morally, intellectually, and physically.
Three laws deal with crime and offending behavior in general: the Public Security Administration Punishment Law, the Criminal Law, and the Criminal Procedure Law (Zhang 2015). In China, crime is defined as law-violating behavior that reaches a certain level of severity. Minor law violations, such as gang fights (Article 26), theft of public property (Article 33, 34, and 35), and possession of firearms or dangerous substances (Article 31 and 32), are not defined as crime. They are handled by the police instead of judges according to the Public Security Administration Punishments Law which was adopted at the seventeenth session of the Standing Committee of the Tenth National People’s Congress of the People’s Republic of China in 2005. More serious offending is defined as crime and regulated by the Criminal Law and handled by the people’s courts at various levels. Although the laws are set out to provide specific provisions on the punishment of offending behavior, they both stress protection of juveniles and stipulate mitigated or none punishment on juvenile delinquents. In addition, the Criminal Procedure Law contains several provisions on how to handle juvenile criminal cases. For example, Article 152 provides that cases of first instance in a people’s court shall be heard in public. However, no cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public; cases involving crimes committed by minors who have reached the age of 16 but not the age of 18 shall not be heard in public either. In spite of the fact that the Criminal Procedure Law aims to protect delinquent youth from being stigmatized, it provides only limited procedural rights, in the eyes of Western experts, instead of full procedural rights to juvenile offenders (Zhang 2015), reflecting the collective and patriarchal values of the society.
The other two laws are specific to juveniles and focus on the protection of youth and prevention of delinquency. In order to protect both the physical and mental health of minors, the Law on the Protection of Minors generally stipulates four types of protection measures, implemented by different parties including the family, the school, the society, and the judicial system. Specifically with respect to adolescent offenders, the law states that if minors commit crime, the policy of education, persuasion, and redemption shall be implemented; education shall be upheld as the main method and punishment as the subsidiary strategy. In addition, alleviated or mitigated punishment shall be applied (Article 54). The Law on Prevention of Juvenile Delinquency composes of eight chapters in regard to various delinquency prevention strategies including, but not limited to the following: education for prevention of delinquency, prevention of juvenile misbehaviors, ratification and treatment of serious juvenile misbehaviors, juvenile self-protection against crimes, prevention of juvenile recidivism, and legal responsibilities of guardians of children and other parties. Consistent with other laws, the Law on Prevention of Juvenile Delinquency stresses the importance of protecting both mental health and physical health of juveniles. Article 2 of the law stipulates that the prevention of juvenile delinquency shall be based on education and protection; the work shall be started with school children, and efforts shall be made to prevent, rectify, and treat juvenile misbehavior before it manifests itself.
Strictly speaking, there is no corresponding word for “delinquency” in Chinese. The word “delinquency” should be roughly translated into “weichengnianren fanzui,” which is a legal term, but it has not avoided the word “criminal” in Chinese. From the view of labeling theory, this Chinese corresponding term has not eliminated stigma label. In addition, the popular Chinese usage tends to lump “youth” and “juvenile” together as if they were interchangeable. The best journal for the topic is called Issues on Juvenile Crimes and Delinquency (in Chinese), which piles up the two separable concepts together. In the statistical yearbooks and in all police documents, there is a separate listing for crime committed by youth under the age of 25 (Zhang 2013a).
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