On the issue of the minimum age of criminal responsibility in the People's Republic of China
As a result of the adoption of Amendment No. 11 to the Criminal Code of the People's Republic of China, on the one hand, the minimum age of criminal responsibility was formally lowered to 12 years, on the other hand, material and procedural restrictions were established for bringing minors to criminal responsibility. Premeditated murder and intentional injury to health committed by minors are certain criminal acts that have specific signs and characteristics, and for a comprehensive assessment of the act and the possibility of being held accountable for a crime committed using particularly cruel means and in the presence of aggravating circumstances, it is also necessary to take into account the subjective and objective factors accompanying the commission of a criminal act. The PRC's experience in lowering the age of criminal responsibility of minors can become a guideline for other countries in the fight against juvenile delinquency.
Keywords: Amendment No. 11, Criminal Code of the People's Republic of China, minors, age of criminal responsibility, 12 years.
Introduction.
On December 26, 2020, the 24th meeting of the Standing Committee of the National People's Congress of the 13th Convocation adopted Amendment No. 11 to the Criminal Code of the People's Republic of China, which entered into force on March 1, 2021 (hereinafter referred to as Amendment No. 11). Before the adoption of Amendment No. 11, persons over the age of 16 who committed a crime should have been prosecuted; Persons between the ages of 14 and 16 were criminally liable for certain crimes: murder, grievous bodily harm, rape, robbery, drug distribution, arson, explosion, poisoning or other crimes seriously violating public order. Amendment No. 11 lowered the minimum age of criminal responsibility to 12 years. This change has caused widespread concern in China. The reason for the revision of the age of criminal responsibility for minors was a series of high-profile cases that stirred up Chinese society. For example, in 2019, a 13-year-old boy, Cai, killed a 10-year-old girl and dumped her body, however, since Cai had not reached the age of 14, he was not prosecuted. There have also been several high-profile cases of offenses committed by minors in other provinces of China. In fact, juvenile delinquency has become a global problem. The experience and practice of determining the age of criminal responsibility of minors in Chinese criminal law will also help the international community.
1. Disputes about the age of criminal responsibility of minors.
After high-profile cases of juvenile delinquency occurred, a heated debate broke out at the Chinese Academy of Criminal Law on whether the age of criminal responsibility should be lowered. Opinions are divided.
A number of scientists believe that it is necessary to abandon lowering the age of criminal responsibility. Proponents of this point of view argue that it cannot be lowered due to episodic juvenile delinquency.
In 1997, the Chinese criminal law established 14 years as the minimum age of criminal responsibility, which corresponds to the trends of world criminal law and has scientific justification in the field of physiology and biology. This approach corresponds to the actual national conditions of China <1>.
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<1> [Song Yinghui]. [A rational view of the criminal liability system] // [Bulletin of the Prosecutor's Office]. 2016. October 24th.
There are also supporters of lowering the minimum age of criminal responsibility. Some experts believe that there is now a tendency for the early development of minors and this leads to the emergence of opportunities for the introduction of criminal capacity. Currently, juvenile delinquency is a serious problem and there is an urgent need to develop appropriate and effective criminal law measures. In particular, such a measure is to reduce the minimum age of criminal responsibility. In addition, there is no single minimum age of criminal responsibility in the world. The establishment of a minimum age of criminal responsibility should correspond to the real situation in the country <2>. According to some scientists, it is advisable to introduce criminal liability in China from the age of 12-13.
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<2> [Sun Zhenjiang]. [Analysis of the criminal legislation of the People's Republic of China on the minimum age of criminal responsibility] // [Circle of theorists]. 2009. N 11.
The third point of view is that it is necessary to borrow from the Anglo-Saxon legal family the principle of "malice makes up for the lack of age." According to this point of view, persons under the age of 14 are not criminally liable as a general rule, but should be brought to it regardless of age if it is proved that they were able to realize and control their actions <3>.
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<3> [Jin Jiegang, Zhang Tao]. [New thoughts on adjusting the age of criminal responsibility] // [Issues of juvenile delinquency]. 2020. N 3.
When drafting Amendment No. 11, Chinese legislators departed from the norm of the minimum age of criminal responsibility at 14 years and did not adhere to the principle of malicious intent, but lowered the age of criminal responsibility based on the real situation in China.
2. The procedure and grounds for bringing to criminal responsibility minors under 14 years of age.
The Chinese legislative authorities have carefully considered the differences regarding the age of criminal responsibility and made a decision in accordance with China's national conditions. Amendment No. 11 introduced the following norm: "Persons who have turned 12 years old but have not reached the age of 14, if they have committed premeditated murder, intentional infliction of harm that caused serious bodily injury or death under particularly aggravating circumstances, are subject to criminal liability if there is a sanction from the Supreme People's Prosecutor's Office of the People's Republic of China to bring to criminal responsibility."
According to this provision, on the one hand, the minimum age of criminal responsibility in China has been officially lowered to 12 years, and on the other hand, strict restrictions are imposed on the criminal prosecution of minors under 14 years of age. This fully "demonstrates the focus of this norm on the protection of minors and reflects the intention of the legislator to prevent the commission of crimes by minors" <4>. Based on the new norm, the investigation of a criminal case of crimes committed by persons under the age of 14 requires two main elements: material and procedural.
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<4> [Hu Yunten, Xu Wenwen]. [Interpretation of the Amendment to the Criminal Code of the People's Republic of China No. 11] // [Study of the rule of law]. 2021. N 2.
Firstly, from the standpoint of substantive criminal law, the conditions for criminal liability are the commission by such minors of premeditated murder or intentional harm to health, resulting in the death of a person, or mutilation by cruel means. At the same time, these acts must necessarily have "aggravating circumstances". Aggravating circumstances include subjective and objective factors, which in practice must be considered comprehensively.
Secondly, the procedural legislation defines the requirements for the initiation of criminal proceedings and the investigation of crimes of persons under the age of 14. Thus, Amendment No. 11 establishes the need to obtain the sanction of the Supreme People's Prosecutor's Office in the case of a crime committed by a person who has reached the age of 12, for which he can be prosecuted. If the Supreme People's Prosecutor's Office does not give the appropriate consent to initiate criminal proceedings, then it is impossible to bring a minor to criminal responsibility. By introducing these material and procedural legal restrictions, a balance is achieved between the fight against juvenile delinquency and their protection.
This approach is also in line with the Chinese criminal policy on combating juvenile delinquency: "Education first, and then punishment."
3. Issues requiring attention in the investigation of juvenile crimes.
When applying the provisions on criminal liability of persons under the age of 14, special attention should be paid to the following issues.
Firstly, premeditated murder and intentional infliction of bodily harm are specific crimes and represent certain actions and their consequences. There are two points of view on what criteria should be used to qualify the actions of minors in order to determine whether they have committed a specific crime for which they can be prosecuted.
According to the first, it is necessary that the actions of a minor correspond to the composition of a specific crime, i.e. robbery involving murder carried out by a minor who has reached the age of 12, in accordance with the provisions of Chinese criminal law, is robbery and minors are not criminally liable in this case, since robbery is not listed in the law as a crime, for which minors may be criminally liable to.
The second point of view is that it is necessary to evaluate the act of a minor not by formal, but by actual criteria. According to this point of view, if a 12-year-old has committed robbery and murder, he should not be criminally responsible for robbery, but should be criminally responsible for murder as a way of committing robbery. The second point of view has been adopted in Chinese judicial practice and has been widely recognized in theoretical circles.
Secondly, it is important to understand the content of the criterion of "particularly cruel means" of committing a crime, which is one of the mandatory elements for bringing a minor under the age of 14 to criminal responsibility. In judicial practice, this criterion is subjected to a comprehensive assessment taking into account the circumstances of the case. The content of this criterion can be assessed from three sides: the victim, the perpetrator and the witnesses. As for the perpetrator, the torture of the victim to satisfy the psychological needs of the perpetrator will be considered particularly cruel means of committing a crime; in relation to the victim, this will be painful torture itself; for an outsider, the fact of observing the perpetrator's torture of the victim will also be considered as the use of particularly cruel means, since this entails serious psychological trauma for the observer <5>. Thus, the criterion for the use of "particularly cruel means" in the commission of a crime must be comprehensively investigated and evaluated together, taking into account the specific circumstances of the case.
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<5> [Hu Yunten, Xu Wenwen]. Decree. op.
The criterion of "aggravating circumstances", which is also a necessary element for bringing minors to criminal responsibility, needs a comprehensive assessment based on the objective harm caused and the nature of the perpetrator's actions. In particular, it is important to assess the number of victims, the identity of the victim, the guilt of the victim, the motives of the perpetrator and his social danger; to consider the social consequences caused by the crime. When assessing the circumstances as aggravating, it is necessary to comprehensively analyze them from the point of view of the subjectivity of harm, social impact and consequences, taking into account the specific circumstances of the case <6>.
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<6> [Sun Qian]. [Understanding and application of the Amendment to the Criminal Code of the People's Republic of China No. 11] // [People's Prosecutor's Office]. 2021. N 8.
Conclusion.
China, within the framework of its policy of combating juvenile delinquency, considered it possible to lower the age of criminal responsibility for certain types of crimes committed under certain circumstances (especially cruel means with aggravating circumstances) to 12 years, and in order to further guarantee the protection of the rights of minors, additional requirements were introduced for the initiation of proceedings and criminal prosecution in the form of the need to obtain consent and control over the investigation of such crimes by the Supreme People's Prosecutor's Office.
The reviewed Chinese practice of reducing the age of criminal responsibility of minors, introduced by Amendment No. 11, can become an example and a reason for making appropriate decisions regarding determining the minimum age of criminal responsibility and conditions for bringing minors to justice in other countries.
