Japan And South Korea Juvenile Law And The Reference Of China

After the end of the Second World War, Japan and South Korea drafted Juvenile Law oneafter another using American Juvenile Law as a reference and finally taken into effectrespectively in1949and1958. The Japanese and South Korea Juvenile Law both dividejuvenile delinquent into criminal juvenile, law-breaking juvenile and potential juvenileoffender and also divide juvenile case into juvenile protection case and juvenile criminal case.Reference to the process of Japanese juvenile justice, anybody, juvenile police，prosecutor and family court probation officer can report，information and transfer juvenilecase to family court according to the authorization of juvenile law. After family courtreceive juvenile case， it must transfer it to family court probation officer or juvenileclassification center to have an investigation and make a investigation report. This is thepre-trail investigation in Japan juvenile law. According to the investigation report, the familycourt judge must decide the juvenile delinquent excuse trial，transfer to prosecutor or startjuvenile protection case. The family court is responsible for the trial of juvenile protectioncases, it shall not be heard in public, holding informal hearing, directly trial and according tothe actual circumstances of the case to decide to take juvenile delinquent into measure ofprotection observation or experimental observation. The juvenile delinquent，legal agent anddefender can appeal the protection measure of family court. The family court has thejurisdiction over juvenile criminal cases and the trail process is referred to the model of adultcriminal process but it couldn’t sentence juvenile delinquent to death, life imprisonment andlabor punishment. Compared with adult’s criminals, juvenile delinquents parole conditions arerelatively loose. After the penal execution or waived, Equal to there’s no criminal punishment,this is called criminal record eradication and preservation.Reference to the process of South Korea juvenile justice, juvenile police, guardian, theschool principal, social welfare organization controller and prosecutors can find juveniledelinquent and dispose minor offend but in the while criminal juvenile must be transferred toprosecutors. It is the biggest difference between South Korea juvenile law and Japan juvenilelaw. Prosecutors could make decisions of not to Sue, deferred prosecution or transferred to ordinary court’s criminal court to juvenile cases. After the family court’s or the district court’sjuvenile division accept young protection case, it must send juvenile delinquent to specialcustody and urge the juvenile division inquisitor to carry out the pre-trial social investigation,and the juvenile division’s judge must make the protection measure based on the investigation.The provisions of criminal trial of the district court’s criminal court are similar to Japanese,and shall not be sentenced to death and life imprisonment, which be able to15yearsimprisonment alternative, shall not be sentenced to labor punishment, and can be sentenced tonot regular punishment. Compared with adult’s criminals, juvenile delinquents paroleconditions are relatively loose. After the penal execution or waived, Equal to there’s nocriminal punishment, this is called criminal record eradication and preservation.Special protection ideas of juvenile has a long history in China, which can be traced backto the feudal society period’s "Xu Xing" system, at the same time,"Xu Xing" happen to havethe same view to the western countries’"Parens Patriae" theory, which becoming Chinesejuvenile justice’s the most important thoughts origin. In the modern time, China graduallybegan to translate western juvenile justice system and try to localize it.But the fact that, Chinese juvenile justice’s development is facing many difficulties, can’tbe ignored, such as no independent young law, the absence of the specialization juvenile trialinstitutions and the chaos of social survey report system and diversity juvenile treatmentmeasures. Juvenile justice originated in the United States. It has developed more than100years and has been relatively mature, which is the best juvenile law legislation referencesamples to China in theory. But the common law system and civil law system havefundamental difference, so the author thinks it is not suitable for Chinese juvenile justiceenvironment and specific difficulties. Japan and South Korea are adjoining with China andtheir historical origin is quite deep, especially the Confucian culture to the three nationalcultural invasions. In addition, Japan and South Korean juvenile law absorb the advancedideas and mature judicial system construction of American juvenile law. Therefore, to takeJapan and South Korea juvenile law as the reference of the legislation of Chinese juvenile law,it not only have many similarity and compatibility with China in cultural foundation andjudicial system, and can avoid severe rejection effect but also can absorb the United Statesrelatively mature young judicial philosophy and system to China through Japan and SouthKorea juvenile law.As mentioned previously, reference to Japan and South Korea current juvenile law and combined with recent criminal law amendment (8) legislative spirit, the author proposes somesuggestions of improvement in view of Chinese juvenile justice’s dilemma. First of all, Chinashould make juvenile law which is both substantive law and procedural law, with the qualitiesof criminal law and administrative law. Second, the areas, where the judicial resources areabundant and conditions are mature, should establish special juvenile court; other areasshould establish juvenile division in ordinary court to take the jurisdiction over juvenile cases.Again, China should construct a "quaternary" social investigation report system which evolvepolices, prosecutors, judges, lawyers and social special investigation agencies to participate in.Finally, to develop juvenile delinquent diverse treatment measures.