The Improvement Of Elderly Criminal Legislation In China

Our country has already entered an aging society. The increasing elderly population will inevitably bring about various social problems, such as elderly crime. Since the founding of the PRC, the punishment of the elderly crime had been remained at the discretion of leniency in practice, and was not explicitly written into the Criminal Code, which entitle the judicial officers to a lot of flexibility. It is not until February25,2011, when the19th meeting of the11th National People’s Congress Standing Committee adopted "The amendment of the Criminal Law of the People’s Republic of China (8)"(hereinafter referred to as "the Criminal Law Amendment (8)"), that the pending criminal responsibility of the elderly came to a preliminary conclusion. The Criminal Law Amendment (8) made provisions for the elderly criminal liability under different circumstances, and provided the death penalty age limit as well as the applicable conditions of probation. This is a big step forward in the legislative history in China. It is undeniable that the contents of the legislation of the elderly is still not yet mature and also not perfect, there are many areas for improvement.This article is divided into four parts:The first part is an overview of criminal legislation of elderly. This section aims to do the analysis of improvement on the criminal legislation of the elderly. First of all, we did a comparison between ancient chinese legislation. Then we focused on the current legislative status. By Analyzing a large amounts of historical data, the special provisions for the criminal responsibility of elder in China since the Zhou Dynasty to modern times were studied. The changes in the Criminal Law Amendment (8) were reasonable, kept up with the times and in line with the widespread moral values.The second part is to examine the elderly criminal legislation in other countries or regions. First we started from the current situation of the elderly crime abroad. Through analysis of the characteristics of the elderly crime in foreign countries, we arrived at the conclusion that the proportion of elderly crime is not large, it comprises less violent crime, and lenient treatment does not affect the social order. Sencond, rules in other countries and regions are compared in order to find the basis of a more lenient punishment. In the context of globalization, China’s legislation should not only be based on the condition of our own country, but also shouldn’t be divorced from the mainstream of the times.The third part is about the principle of criminal legislation and its establishing reason. The principle consists of forgiveness, equit and non-wronging and non-indulgement. To be forgiveness oriented is due to the rapid increase of our aging population. And the protection for the rights of elderly looms ahead. The criminal responsibility of older persons is inevitablely weaken. Besides, speaking from the legislation itself, the principle of our criminal law comprises fairness and justice, and it just so happens that the lighter punishment is the embodiment of the Criminal Law temper justice with mercy and individual principles. From the purposes of criminal law, mitigating the criminal liability of the elderly also contributes to the purpose of general prevention and special prevention. The equit is reflected in some provisions that do not have leniency for the elderly. It is determined by the status in China. In order to achieve equity and social stability, some crimes still need to be striked severely.The fourth part is about the defect and improvement of the current legislation. In our legislation for the elderly, there are still many aspects not been covered, for example, the way of the execution of punishment, the protection of the elderly procedural rights. Many aspects can be perfect even in the Criminal Law Amendment (8). From four aspects, this section lists the defects now surviving in the legislation. At the same time, start with the substantive law and procedural law, we put forward suggestions for improvement in the criminal legislation on the elderly. On conviction, the legislation for the elderly can follow the legislation of minors. Minors under the age of14are fully not criminal responsible and14to16years old is only responsible for a number of offenses. The same age limit can also be pinned down for the elderly. Some physical conditions like mobility inconvenience and unconsciousness can be attached to these limits. This is the most compelling evidence of a nation’s legislation being in line with the humanitarian. First, the provisions on the death penalty in sentencing should be re-detailed. Relevant judicial interpretations are needed to explain what is "particularly cruel means". The second is to further restrict other kinds of punishment. Third, judicial should protect the absolute leniency of elderly. Otherwise, this judicial progress may become a dead letter. Furthermore, to take care of the actual situation of the elderly, the execution of punishment should be flexible. Finally, in criminal action, provisions on the protection of elderly rights should be added instead of merely leniency.The elderly’s right to appeal and the right to defend themselves should be protected. Older persons are weak. People should have mercy. A law that is too harsh will be lack of public recognition. Inequality is doomed be born from the judgment with a wrong litigation relationship. China’s criminal law is in pursuit of fairness and justice and social stability. Only if we insist the people-oriented principle in legislation, strengthen the suspect’s right, the defendant’s right, it could be possible to achieve the final effect.