A Study On Process Of Restorative Juvenile Criminal Justice

Juveniles are the future of the state and society.Juvenile's situation indicates China's situation in the future.We can say that,the situation of juvenile crime and its disposal effect are "vibrometers" for order and disorder of the society in the future.However,juvenile criminal justice system is on the margin of China's whole criminal justice system,which is out of all relation to the importance of juvenile crime's disposal.In extraterritorial jurisdiction,disposal of juvenile crime encountered system bottleneck,so its theory and practice of juvenile justice try to find a new way to overcome the defects of traditional juvenile justice,which is adopting the process of restorative juvenile criminal justice to dispose juvenile criminal cases.In the meantime,after the survey of regional juvenile justice reform in China,the dissertation finds that China's juvenile justice is also confronted with the similar dilemma,and to some extent,the reform measures which regional justice organs adopt have some factors or features of process of restorative juvenile criminal justice.This study tries to implement the theory of restorative justice into the study of the process of restorative juvenile criminal justice,taking China's current regional criminal justice reform as the background,via theoretic analysis and empirical survey,to find how restorative justice is implemented into the process of juvenile criminal justice and form a set of processes of restorative juvenile criminal justice,and give theoretic summary and evaluation of its cause,current situation,effectiveness,adaptability and developing prospect.Restorative justice is a kind of justice system with high inclusion and openness.Restorative justice can be deemed a judicial system which aims at restoring the social relationship harmed by criminal behavior,admit the subjects including offender and victim participate,in the way of communication,negotiation and consultation,to result in a disposal of the criminal case finally.In fact,the process of restorative juvenile criminal justice is an outcome which combines the restorative justice and the processes of juvenile criminal justice,which compromises retributive juvenile justice and welfare juvenile justice.The process of restorative juvenile criminal justice has wide and profound theoretic basis.Civil society,political democracy,civil autonomy,cultural tolerance and legal modesty form an integrated theoretic clew of restorative juvenile criminal justice,which support the system of restorative juvenile criminal justice.In the practice of process of restorative juvenile criminal justice,juvenile delinquent,victim,mediator,state organ,community(including all kinds of social organizations)and lawyer play the different roles in the process of restorative juvenile criminal justice.Juvenile delinquent is the center of the process of restorative juvenile criminal justice,so restorative juvenile criminal justice is the restorative justice process which "focuses on juvenile delinquent",different from the ordinary restorative justice.In the world,the operation model of process of restorative juvenile criminal justice is characterized by diversity.These characteristics in practice are:1)two goals:restoring the social relationship harmed by juvenile criminal behaviors and promoting juvenile delinquent return to society;2)four main subjects:juvenile delinquent,victim,community and state;3)two pillars:protection of rights and assuming responsibilities;4)three main factors of responsibilities:apology,compensation and community service.The experiments of the process of restorative juvenile criminal justice are rising in China.Some regional judicial organs are doing experiments of juvenile justice which have some elements of restorative justice.These experiments not only exist outside the formal criminal process,but also exist in the phase of investigation,prosecution,trial and correction,and the social organization's participation is also an important aspect.The social policy of constructing harmonious society and the criminal policy of combining leniency with rigidity provide the political and legal motive force for these experiments.In the meantime,because the whole criminal justice reform has run into trouble,the regional judicial organs turn to find the juvenile justice reform with "minimal risk and maximal benefit" as the breakthrough of criminal justice reform,and restorative juvenile justice just could meet the requirement.That form the situation of "regional reform competition" in the field of juvenile justice.Establishment,development and operation of the process of restorative juvenile criminal justice need some conditions,including social environment,cultural environment,institution environment and public opinion environment.The process of restorative juvenile criminal justice could accommodate to these circumstances in China.However,some elements in these circumstances may cause resistance on the way of its development in China.Cultivating the relative social conditions and adjusting and renewing the system are important.China's process of restorative juvenile criminal justice is going towards to systematization,which will help establish and unify Chinese juvenile justice system,which also will be out of attachment to the adult's justice.China's current juvenile justice model has not been completely shaped,which provide us an opportunity to prudently choose an appropriate juvenile justice model.Owing to the advantage and disadvantage of the juvenile justice models in the world,from the practical experience of China's juvenile justice reform,China should establish a juvenile justice model with a "dual-track-system" of criminal model and restorative model,taking account of the elements of juvenile welfare.Systematization of process of restorative juvenile criminal justice aims at restoration of social relationship,protection of juvenile rights,juvenile's assuming responsibilities and diversion of process.The principle of children's best interest,the principle of due process and the principle of judicial minimal intervention should be established.Because restorative justice is a kind of justice of diversity,the state should provide diverse processes of restorative juvenile criminal justice,including referral process,mediation process,investigation process,evaluation process,prosecution discretion process,verdict discretion process,education process,correction process and welfare security process.The integrated structure system should be established in the phase of investigation,prosecution,trial and correction.Restorative juvenile justice also should has some essential procedural elements,including startup,referral,mediation,evaluation,investigation,review,decision,implementation and supervision.Restorative juvenile justice is a new way to save juvenile delinquent.Saving juvenile delinquent is not only the task of the state,society and other people,but also a way of saving themselves.In further sense,restorative justice not only can promote settling criminal dispute,correcting and preventing juvenile delinquency and saving juvenile delinquent,but also can help the young citizen grow,cultivate civil spirit.And the public participation in restorative juvenile justice will also become part of the construction of the civil society.