The Chinese Problem With In The Special Criminal Procedures For Minors

Considering the existence of great differences between minors and adults in both physical and mental aspects, also based on the fact that “Yan Da” policy in the 80 s last century did not show positive effects on reducing juvenile crime rate, China has tried to separate offenders under 18 from adult criminals in its legislation and other judicial activities since the end of 1980 s. However, as the related statutes were scattered in different legislations like Law of the PRC on the Protection of Minors, Law of the PRC on the Prevention of Juvenile Delinquency, as well as Criminal Procedure Law of the PRC etc., Chinese juvenile litigation procedure had been neither unified nor enough clear until 2012. In the second amendment of Criminal procedure Law(which was adopted in 2012 and took effect in 2013), an independent chapter that specifies the unique procedures for and special litigant rights of juvenile criminal offenders was created. By this means, China started its progression towards the establishment of its juvenile criminal proceeding system which should be characterized as advanced, complete and systematic in the protection of minor criminals, in the rectification of the delinquency, in the assistance to people with criminal record in their minor age to re-merge into society, as well as in the reduction of juvenile crime rate. This article presents the status quo and the problems of Chinese existing litigation procedures for minor offenders. With the research method of functional comparison, the article tries to illustrate the commonness and individuality between Chinese special litigation procedures for minors and related legislation in American juvenile justice system, as well as in German Jugendgrichtsgesetz. In the process of these comparisons, the essential flaws in China’s juvenile criminal proceeding system(the “Chinese Problems”) are revealed and ultimately, a series of proposition targeting the refine of these flaws are made which hopefully could provide useful references for Chinese future improvement of its juvenile justice system.This article includes the following sections: The first part introduces Chinese existing special litigation procedures for minor offenders. This part consist of the concept of “minor” in China, the main legislations which are relevant in criminal proceeding procedures for juvenile delinquent, and the basic principles revealed in Chinese litigation procedures for criminals under 18. The second part presents the improvement and the problems of the existing special litigation procedures. The third part introduces the juvenile criminal proceeding procedures in the US and Germany, with the research method of functional comparison, this chapter also explains the reasons that made related legislation of America and Germany adequate references for China. The fourth part is the core of this article, in which the functional comparison is utilized as means to discover the essential flaws of Chinese litigation procedures for minor offenders(the “Chinese Problems”). In this part, the commonness and individuality between related legislation of China and the two foreign countries mentioned above, as well as the reasons that caused the existence of these differences are demonstrated. According to the facts whether these legislation can reduce juvenile crime rate and protect litigant right of minors effectively, this chapter also discusses the effects which are brought by the differences in the legislations of the 3 countries to their own society that will lead to the evaluation of whether these legislations fit the need of its country. The fifth part condenses the analysis made in the fourth part and exposes the contents of the essential flaws of Chinese existing litigation procedures of juvenile criminals(the “Chinese Problems”). Focusing on these flaws, also on China’s present situation, as well as integrating with international common trends on the development of modern juvenile justice system, this chapter provides a reasonable presumption of China’s future possible advancing direction in relevant legislation and brings specific suggestions that target to refine the Chinese Problems, improve related legislations, as well as consistent with the presumed advancing direction. The last part(sixth part) is the conclusion of this article.