Research On The Judicialization Of The Applicable Procedures For Special Education For Minors Involved In Crimes

In 2020,the Criminal Law and the Law on the Prevention of Juvenile Delinquency were amended one after another to replace institutionalization with special education for minors involved in crime,and to carry out legal reform in terms of institutional entities and implementation.However,the reform law has not made substantial changes in the administrative application procedures of institutionalization and corrections,resulting in the application procedures of the special education system for minors involved in crimes still have a strong administrative color in terms of procedural subjects,decision-making processes and relief mechanisms.Taking administrative procedures as the applicable procedural carrier of the special education system for minors involved in crimes,there are multiple problems such as insufficient neutrality of procedural subjects,lack of rights protection mechanisms,lack of power restrictions,and limited scientific fairness in decision-making.The special education system for minors involved in crimes targets minors who have not reached the age of criminal responsibility but are suspected of committing criminal offences.With the content of restricting personal freedom for a longer period of time,justice should be regarded as the primary pursuit of the procedure,so it is difficult to fully realize the procedural rule of law through internal improvement of administrative procedures.Specialized education for minors involved in crime is a measure with both protection and security sanctions.According to the theory of protection and security sanctions,foreign juvenile justice practice and China’s Constitution,measures to restrict personal freedom with the characteristics of forced intervention should be a matter of judicial reservation.Therefore,the applicable procedures for the special education of minors involved in crimes should be judicialized.Compared with administrative procedures,the judicial process structure has the legitimate advantages of independent and neutral referees,effective participation of parties,and effective restriction of power.For the judicial design of the applicable procedures for the special education of minors involved in crime,the basic principles of minors involved in crime as the main body of the procedure,due process and the maximization of children’s interests should be clarified,and on this basis,specific construction of evaluation procedures,decision procedures and relief and restriction mechanisms should be made.Before all others,To ensure the participation and opinions of all relevant stakeholders,the evaluation process of whether minors involved in crime need special education should be carried out in the form of a hearing.Among them,the Police and the Procuratorial department shall act as the starting subjects and evaluation subjects respectively.Secondly,the decision-making procedure shall be initiated by the procuratorate in accordance with the law.The court shall specially design the decision procedure in the light of the special psychological needs of minors,and make special educational decisions on the basis of listening to the opinions of the "two constructions".Finally,in terms of remedies and restraint mechanisms,it should be made clear that minors involved in crimes enjoy a wide range of remediation rights to safeguard their own interests and restrict the exercise of public power in the process.At the same time,the public powers in the procedure should also contain each other and play the role of "power restricting power",thus ensuring special educational decision-making.It is generated through due process.