On Perfecting The Protection For Juvenile Delinquency Criminal Laws

In recent years, the juvenile delinquency law system of our country has developed a lot, but its protection of the juvenile delinquency is far from enough. Only by improving the system and strengthening the protection of minors can truly embody the value of criminal laws. Establishing a Minor Criminal Law is the author's suggestion, including substantive, procedural and many other parts.The author believes that the substantive law, which is to protect the minors, should cover the following contents.The first one is to define the concept of juvenile delinquency and distinguish clearly whether it is criminal or not. In criminal laws, the concept of juvenile delinquency should be composed by age, capacity of criminal responsibility and criminal behaviors and other factors, and the starting point of minors'age of criminal responsibility should be defined as when acting. It can avoid divarication and deviations of understanding of the calculation on age in the judicial practice, and clearly distinguish criminal and non-criminal. It is helpful for protecting the rights and interests of minors.The second one is to stipulate the criminal liability doctrine of juvenile criminal. The principle of education, prevention and saving requires that criminal laws always make the special protection of minors as principles and define it in law provisions. The principle of special examination confirms the particularity in the phase of examination for arrestment and prosecution to carry out the principle that not to arrest when to arrest and not are both allowed, not prosecuting when to prosecute and not are both allowed. The principle of simplification is to shorten the time of handling a case, simplify the procedures and carry out brief procedures'trial to settle the case as soon as possible and lessen the agony and pressures of minors. The principle of two-way protection should make the management of the case of juvenile delinquency become a process including both punishment and treatment, and protection of the society and protection of minors to be harmonious and unified as well. The principle of comprehensive investigation is to define an authority to make all-round investigation about the minor's community, family background, and educational experiences and investigation report should be handed in to the trail authority for reference. The principle of proportionality is that the handling of the case of juvenile delinquency should suit to the circumstance and ponderance of the crime, the circumstance and needs of minors, as well as the needs of society.The third one is to define clearly the variety of penalty concretely suitable to the juvenile delinquency. Firstly, some kinds of penalty should be abolished such as death penalty, deprivation of political rights, confiscation of property and life imprisonment. Secondly, criminal detention is the penalty which should be strictly restricted and it is not suitable to replace detention with imprison for six months. Detention, as a kind of penalty of short-term imprisonment, does not have great effect on educating minors, but easily bring them cross infection. Thirdly the penalty of imprisonment suitable for the minors should be less than 10 years, and no more than 15 years in the case of combined punishment for several offenses.The fourth one is to modify and apply the recidivism system. It can be regulated that minor recidivist should reach to 18 years old. That is if when the criminal, who has sentenced to set term of imprisonment or worse than that, committed a crime after the completion of the punishment or remission, if he or she is younger than 18 years old, he or she does not commit recidivism. Meanwhile, when the criminal commits recidivism after the completion of the punishment or remission and has been sentenced to the penalty of set term of imprisonment or worse than that, the period should be shortened from the 5 years to 3 years regulated in the present penal code.The fifth one is to broaden the qualification of commutation and parole for juvenile delinquency. Penal law's regulation of no allowance to parole for juvenile criminal of severe punishment does not have great practical significance, but its side effects can not be ignored. The possibility of regulating to obviate this item from the minors should be considered.The sixth one is to add the system of abrogation of criminal spots. The author thinks that the system of abrogation of criminal spots should be added. The detailed methods are that:1. Building the system of in-advance abrogation of minor's criminal record. Although the criminal records exist in reality, the laws regulate that it would not be referred to. Therefore, there will not be lawful kickback or adverse legal status. 2. Regulating the criminal records should be perished with the expiry of probation testing. 3. Regulating that the criminal records should be perished in a period of time after the completion of punishment. As to the particular period of time regulated, it is still to be confirmed after practice.The seventh one is to regulate non-imprisonment penalty or system of penalty substitution. Although there are regulations about the non-imprisonment measures for juvenile delinquency, the varieties are limited, and the regulations are scattered. It is hard to be carried out in judicial practice. Therefore, it is necessary to regulate the ways of non-imprisonment penalty and penalty substitution. It may include benevolence deposit, judicial warning, punishment of protection and observation, compulsory medical measures and community service, combined with penalty of restriction, fine and probation.The author suggests improving the protective procedural laws for minors in the following aspects:Firstly, adopt measures practically and decrease detainment before trail. Detainment must be used when it is absolutely necessary for juvenile suspects and defendants. The detainment before trail should be decreased as much as possible. We should try the best to bring bail pending trail, keep watching on living and other non-imprisonment compulsive measures into play. Meanwhile, develop practical science and technology to increase the possibility of imprisonment substitution.The next one is to add the system of personality investigation before trail. Before making the sentence of juvenile criminals, we should fully understand the minors'growing status and psychological experience. Only so can we make sentences which are adaptive to the crime and with pertinence and definite education for the minor suspects and defendants.The last but not least, we should properly increase the right-protection measures in the criminal litigation and build the psychological consultation system of juvenile delinquency in the right time.