NPC Explanation on Juvenile Crime Procedures

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Part V: Special Procedures

Article 266: Implement the directive of education, reform and rescue for juveniles committing crimes, and adhere to the principal of education first with punishment as a supplement. People's courts, people's procuratorates and public security organs handling juvenile criminal cases shall ensure the juvenile's exercise of his rights and ensure that the juvenile receives legal assistance, as well as having trial, procuratorate, and investigation personnel familiar with the special traits of juveniles undertake the case.

【Article Topic】

This article concerns principles and overall concepts for handling juvenile criminal cases.

【Article Summary】

In the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012, a chapter was added on Juvenile Criminal Prosecutions in the newly added Part 5 on Special procedures. In recent years, China's judicial organs has conducted exploration and practice in the area of improving the juvenile justice system, and accumulated experience to achieve positive social effects. 中央深化司法体制和工作机制改革明确要求,按照教育为主、惩罚为辅的原则,探索处理未成年人犯罪的司法制度,明确其条件、期限、程序和法律后果。 这次关于修改刑事诉讼法的决定根据中央司法体制改革的要求,以及一些全国人大代表以及有关方面的意见和建议,总结实践经验,将未成年人刑事案件程序作为一种特别的刑事诉讼程序予以规定,有利于未成年人在刑事诉讼中权益的保障,有利于结合未成年人的特点,对未成年人犯罪人教育改造,促其回归社会。 这是司法改革成果的重要体现,也是我国诉讼制度的重要完善。 本章规定了办理未成年人案件的方针、原则,办理案件的特别规定以及适用于未成年人的附条件不起诉制度和犯罪记录封存制度。

This article has two clauses. The first clause concerns the directives and principles for handling juvenile criminal cases.

“教育、感化、挽救”的方针是指在依法追究未成年人刑事责任时,必须立足于教育、感化、挽救,通过教育、感化、增加法制观念,认识错误改过自新,重新回归社会。 而“教育为主、惩罚为辅的原则”,主要是指在处理教育与惩罚的关系时,要以教育为主要目的,而不能以刑罚作为目的,刑罚也是对其教育的一种手段,服从于教育、感化、挽救的目的。 这就要求在办理未成年人犯罪案件过程中应当查清犯罪事实,确保法律正确适用,保护其合法权利,同时根据犯罪原因有针对性地对其进行法制教育,以矫正其犯罪心理和不良行为习惯,促其改过自新,重新融入社会。 在刑事诉讼中贯彻教育、感化、挽救的方针和教育为主、惩罚为辅的原则,需要注意以下几个问题:第一,上述方针和原则不仅仅体现在刑事审判和刑罚执行环节,而应贯穿于刑事诉讼的全部过程。 例如在侦查阶段,公安机关对被羁押的未成年人应当与成年人分押分管。 对未成年人犯案件的侦查、预审工作,由专门办案人员或者侧重办理未成年人犯刑事案件的人员进行。 对未成年犯罪嫌疑人,在讯问中应进行耐心细致的教育;注意了解未成年人犯作案的动机和成因等。 在检察机关提起公诉阶段,应同有关部门加强联系,充分了解案件情况,对符合条件的未成年犯罪人作出附条件不起诉的决定。 人民检察院还要加强对侦查活动、审判活动和未成年监所的监督,保证准确执行法律,保障未成年人的合法权益。 第二,坚持教育、感化、挽救的原则,必须处理好惩罚与教育的关系。 对犯罪的未成年人进行教育、感化和挽救,并不意味着对其犯罪行为的纵容和不处罚。 既要与成年人犯罪区别对待,尽可能多地给予未成年犯罪人改过自新机会,但同时也要防止对未成年犯罪人盲目减轻处罚,甚至不处罚的错误做法。 对那些社会危害严重、主观恶性大的未成年犯罪人就应当在法律规定的原则和范围内予以必要的惩罚,以发挥刑罚的教育功能。

第二款是关于司法机关办理未成年人案件应当保障未成年人诉讼权利,以及对办理未成年人案件人员的要求条件的规定。

我国刑事诉讼法第十四条规定,人民法院、人民检察院和公安机关应当保障犯罪嫌疑人、被告人和其他诉讼参与人依法享有的辩护权和其他诉讼权利。 对于未成年犯罪嫌疑人、被告人来说,不仅享有与成年犯罪嫌疑人、被告人相同的诉讼权利,如以本民族语言文字进行诉讼;申请审判人员等回避;参加法庭调查和法庭辩论;对地方各级人民法院作出的一审判决、裁定有上诉的权利等等。 同时,未成年人在刑事诉讼中还享有一些特殊的权利,如刑事诉讼法规定,对未成年人犯罪的案件,犯罪嫌疑人、被告人没有委托辩护人的,司法机关应当通知法律援助机构指派律师为其提供辩护;在讯问和审判时,应当通知未成年犯罪嫌疑人、被告人的法定代理人到场;审判时被告人不满十八岁的案件不公开审理等等,对这些权利都应当依法予以保障。 “保障未成年人得到法律帮助”则要求司法机关在办理未成年人案件时,第一,要让未成年人了解法律的有关规定,包括涉及其犯罪行为定罪量刑的有关规定,也包括其享有的诉讼权利和其他合法权利的法律规定。 第二,根据修改后的刑事诉讼法第二百六十七条的规定,如果未成年犯罪嫌疑人、被告人没有委托辩护人的,司法机关应当通知法律援助机构指派律师为其提供辩护,以使其获得法律帮助。 由熟悉未成年人身心特点的审判人员、检察人员、侦查人员办理未成年人案件,是对人民法院、人民检察院和公安机关在办理未成年人刑事案件时人员安排上的特别要求。 司法人员熟悉未成年人身心特点,善于作未成年人的思想教育工作,有利于教育、感化、挽救方针的落实,也有利于与未成年的沟通,促进其悔过自新。 因此,此次修改刑事诉讼法将其作为办理未成人案件的一项人员条件予以规定。

Article 267: Where juvenile criminal suspects and defendants that have not retained a defender, the people courts, people's procuratorates and public security organ shall notify the legal aid organization to appoint a lawyer to provide a defense.

【Article Topic】

This article concerns provision of legal aid to juvenile criminal suspects who have not retained a defender.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

根据本条规定,在未成年犯罪嫌疑人、被告人没有委托辩护时,人民法院、人民检察院、公安机关应当通知法律援助机构指派律师为其提供辩护。 修改之前的刑事诉讼法第三十四条第二款规定,公诉人出庭公诉的案件,人民法院应当指定承担法律援助义务的律师为没有委托辩护人的未成年被告人提供辩护。 相对于原规定,本条规定有以下几点变化:第一,将为未成年人提供律师法律援助的时间提前到侦查和审查起诉阶段,只要办理案件的公安机关、人民检察院发现该未成年犯罪嫌疑人没有委托辩护人的,就应当及时通知有关部门为其提供法律援助,以保障其诉讼权利的充分行使。 第二,明确规定了公检法机关保障未成年人法律援助义务,一旦发现未成年人未委托辩护人,则应立即通知法律援助机构。 第三,进一步明确了为未成年犯罪嫌疑人、被告人提供法律援助的工作机制,即由公检法机关通知,由法律援助机构指派律师提供辩护。 根据相关法律规定,直辖市、设区的市或者县级人民政府司法行政部门根据需要设立本行政区域的法律援助机构。 法律援助机构负责受理、审查法律援助申请,指派或者安排人员为符合条件的公民提供法律援助。 法律援助机构接到司法机关通知后,应当及时指派律师为未成年犯罪嫌疑人、被告人提供法律援助服务,并对律师的法律援助活动进行业务指导和监督,以确保法律援助案件的办理质量。 接受指派的辩护律师应当根据事实和法律,提出未成年犯罪嫌疑人、被告人无罪、罪轻或者减轻、免除刑事责任的材料和意见,维护犯罪嫌疑人、被告人的诉讼权利和其他合法权益。

第二百六十八条 公安机关、人民检察院、人民法院办理未成年人刑事案件,根据情况可以对未成年犯罪嫌疑人、被告人的成长经历、犯罪原因、监护教育等情况进行调查。

【Article Topic】

This article concerns the social inquiry which may be performed by judicial organs handling juvenile cases.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

According to this article, when judicial organs, including public security organs, people's procuratorates and people's courts are handling juvenile cases, they all may conduct an inquiry into the circumstances of the juveniles upbringing, reasons for the crime, regular supervision and education. During the course of the investigation, indictment and trial, judicial organ personnel may both themselves learn of the defendant's circumstances and may also entrust relevant groups and organizations to understand the juvenile suspect or defendant's relevant circumstances. The content of the inquiry includes the juvenile suspect or defendant's personality characteristics, home circumstances, upbringing experience, and whether or not he has effective supervision and social mentoring requirements, as well as his conduct before and after becoming involved in the crime, so as to comprehensively understand the circumstances of the crime. Determine the juvenile's degree of subjective malice and whether there is a possibility of his committing another crime on the basis of all the information acquired, so as to provide a reference in determining whether or not to adopt compulsory measures, whether to apply condition non-prosecution, as well as what punishment to use. What should be noted is that the information obtained in the inquiry can provide a certain amount of reference for judicial organ personnel handling juvenile criminal cases, but is not a basis for determining guilt or sentencing.

Article 269: Where juvenile criminal suspects and defendants that have not retained a defender, the people courts, people's procuratorates and public security organ shall notify the legal aid organization to appoint a lawyer to provide a defense. People's procuratorates reviewing for approval of arrest, and people's courts deciding to arrest shall interrogate juvenile suspects or defendants and hear the defense attorney's opinions.

Juveniles shall be detained separately from adults when held in custody, arrested, or serving criminal penalties, separately manged and separately educated.

【Article Topic】

This article concerns the strict application of arrest procedures for juvenile suspects, as well as forms of detention, management and education.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

This article is divided into two clauses. 第一款是关于对未成年的犯罪嫌疑人、被告人严格适用逮捕措施的规定,主要体现在以下两个方面:第一,人民检察院或者人民法院在批准或者决定对未成年人适用逮捕措施时,应准确把握适用逮捕措施的条件。 修改后的刑事诉讼法第七十九条对适用逮捕的条件作了规定:其一,对有证据证明有犯罪事实,可能判处徒刑以上刑罚的犯罪嫌疑人、被告人,采取取保候审尚不足以防止发生可能实施新的犯罪;有危害国家安全、公共安全或者社会秩序的现实危险;可能毁灭、伪造证据,干扰证人作证或者串供;可能对被害人、举报人、控告人实施打击报复;企图自杀或者逃跑的社会危险性的,应当予以逮捕。 其二,对有证据证明有犯罪事实,可能判处十年有期徒刑以上刑罚的,或者有证据证明有犯罪事实,可能判处徒刑以上刑罚,曾经故意犯罪或者身份不明的,应当予以逮捕。 其三,被取保候审、监视居住的犯罪嫌疑人、被告人违反取保候审、监视居住规定,情节严重的,可以予以逮捕。 在批准或者决定逮捕未成年犯罪嫌疑人,应当根据未成年犯罪嫌疑人、被告人的实际情况,依法适用逮捕措施,防止错误逮捕。 在确定是否有逮捕必要时,可捕可不捕的不捕。 对于罪行较轻,具备有效监护条件或者社会帮教措施,没有社会危险性,不会妨害诉讼正常进行的未成年犯罪嫌疑人,不应适用逮捕措施。 第二,在人民检察院审查批准逮捕或者人民法院决定逮捕未成年犯罪嫌疑人、被告人时,程序上有更严格的要求。 根据本条规定,检察院、法院在批准或者决定逮捕前,应当讯问未成年犯罪嫌疑人、被告人,并听取辩护律师的意见。 这一程序的设置,有利于核实其是否具有犯罪行为,是否符合逮捕条件,防止错误逮捕。 根据刑事诉讼法第二百七十条的规定,讯问未成年犯罪嫌疑人、被告人,应当通知法定代理人到场,无法通知、法定代理人不能到场或者法定代理人是共犯的,也可以通知未成年犯罪嫌疑人、被告人的其他成年亲属,所在学校、单位、居住地基层组织或者未成年人保护组织的代表到场,到场的法定代理人可以代为行使未成年犯罪嫌疑人、被告人的诉讼权利。 讯问女性未成年犯罪嫌疑人,应当有女性工作人员在场。 除讯问之外,检察机关、人民法院在批准或者决定逮捕未成年犯罪嫌疑人、被告人之前,还应听取其辩护律师的意见。 辩护律师可以就其被代理人是否应当适用逮捕措施提出意见。

第二款是关于对被拘留、逮捕和执行刑罚的未成年人与成年人分别关押、分别管理、分别教育的规定。 被拘留、逮捕的未成年犯罪嫌疑人由看守所羁押,根据相关法律规定,看守所对成年人和未成年人,应当分别羁押。 这样规定可以让未成年人在羁押过程中免受成年人的不良影响,防止发生对未成年人的不法侵害,更有利于对未成年人教育、矫治工作的开展。 根据监狱法的相关规定,未成年犯由未成年犯管教所执行刑罚。 未成年犯管教所将按照未成年犯的刑期、犯罪类型,实行分别关押和管理,并根据未成年犯的改造表现,在活动范围、通信、会见、收受物品、离所探亲、考核奖惩等方面给予不同的处遇。 对未成年犯的教育采取集体教育与个别教育相结合,课堂教育与辅助教育相结合,所内教育与社会教育相结合的方法。 对未成年犯进行思想教育,内容包括法律常识、形势政策、道德修养、人生观、爱国主义、劳动常识等。 根据未成年犯的文化程度,分别进行扫盲教育、小学教育、初中教育等不同层次的文化教育。 根据刑期、文化程度和刑满释放后的就业需要,重点进行职业技术教育和技能培训。 管教人员还会根据未成年犯的案情、刑期、心理特点和改造表现进行有针对性的个别教育。 未成年犯管教所建立心理矫治机构,对未成年犯进行生理、心理健康教育,进行心理测试、心理咨询和心理矫治。 这种专门的管理和教育有利于对未成年罪犯的教育改造,也是通过实践取得的经验。

Article 270: The juvenile suspect's legally-designated representative shall be notified to appear when interrogating or trying juvenile criminal cases. Where the is not way to notify them, the legally-designated representative cannot appear or is a co-criminal, the juvenile suspect or defendant's other adult family members or representative from their school, workplace, basic level organization from their place of residence or child welfare organization may also be notified to appear in court, and such circumstances shall be recorded in the case file. Legally-prescribed agents making appearances may exercise the juvenile suspect or defendant's rights on his behalf.

Where legally-designated representatives or others making an appearance find that the persons handling the case have violated the juvenile's lawful rights and interests at interrogation or trial, they may submit an opinion. The interrogation records and court records shall be given to the legally-designated representative or other persons appearing to read or have read to them.

When female juvenile suspects are interrogated there shall be female personnel present.

When trying juvenile criminal cases, after the juvenile defendant's final statement his legally-designated representative may make a supplementary statement.

The provisions of paragraph 1, 2, and 3 apply to the questioning of juvenile victims.

【Article Topic】

This article is about special provisions for interrogation and trial of juvenile criminal suspects and defendants.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

This article is divided into five parts. 第一款是关于司法机关讯问、审判未成年犯罪嫌疑人、被告人,应当通知其法定代理人到场的规定。 修改之前的刑事诉讼法第十四条第二款规定,对于不满十八岁的未成年人犯罪的案件,在讯问和审判时,“可以”通知犯罪嫌疑人、被告人的法定代理人到场。 本款规定将上述规定修改为 “应当”通知其法定代理人到场,进一步加强了对未成年人诉讼权利的保护。 更为重要的是,本款规定在法定代理人无法通知,或者虽经通知但因故不能到场,或者法定代理人是同案犯,到场可能发生串供等妨碍讯问、审判活动的,司法机关可以选择通知未成年犯罪嫌疑人、被告人的其他成年亲属、所在学校、单位、居住地基层组织或者未成年人保护组织的代表到场。 这一规定为法定代理人不能到场的未成年人提供了保护措施,进一步体现了对未成年人在讯问中权利的保护。 通知法定代理人以外的其他人员到场的,司法机关工作人员应当将法定代理人不能到场的原因、相关人员到场的具体情况等信息在讯问笔录、庭审笔录等文件中予以记载、说明。

根据本款规定,到场的法定代理人可以代为行使未成年犯罪嫌疑人、被告人的诉讼权利,具体包括:使用本民族语言文字进行诉讼;申请侦查人员、检察人员、审判人员、书记员、鉴定人、翻译人员回避;自行或在辩护人协助下获得辩护;讯问时拒绝回答侦查人员提出的与本案无关的问题;对审判人员、检察人员和侦查人员侵犯公民诉讼权利和有人身侮辱的行为,有权提出控告;参加法庭调查、法庭辩论对证据、案件情况和定罪、量刑发表意见。

第二款是关于到场的法定代理人或者其他人员有权对司法机关工作人员侵犯未成年人权益的行为提出意见,以及有权阅读讯问笔录、法庭笔录的规定。 到场的未成年犯罪嫌疑人、被告人的法定代理人或者其他人员对办案人员侵犯未成年人合法权益的行为提出意见,司法机关及其工作人员对提出的意见,应当充分重视,如确实侵犯了未成年犯罪嫌疑人、被告人合法权益的,应当及时予以纠正。 讯问笔录和法庭审理笔录是刑事诉讼中的重要法律文书,前者是犯罪嫌疑人、被告人供述等言辞证据的重要载体,后者记载了全部审判活动,是合议庭分析研究案情的重要依据。 根据刑事诉讼法的相关规定,讯问笔录和法庭笔录必须交当事人核对无误,并签名盖章,确保其合法性和真实性。 在办理未成年人案件时,由到场的法定代理人或者其他人员阅读或者向他宣读讯问笔录、法庭笔录,可以协助未成年犯罪嫌疑人、被告人对讯问笔录、法庭笔录的内容、制作过程是否真实进行核对,以保证讯问、审判的有效性。

The third clause concerns requiring a female staff member on the scene when interrogating female juvenile suspects. 女性工作人员在场,可以充分照顾到女性未成年犯罪嫌疑人的生理、心理特点,缓解其紧张、畏惧的情绪,有利于保护女性未成年人的特殊权益,也有利于讯问工作的顺利进行。

第四款是关于审理未成年人案件在被告人最后陈述阶段,其法定代理人可以进行补充陈述的规定。 最后陈述权是刑事被告人在庭审中所享有的一项重要的诉讼权利。 被告人的最后陈述有助于法官全面地了解被告人对指控犯罪的态度、悔罪表现,更全面地了解犯罪情况和案件事实,同时还凸显了对被告人的尊重,让被告人有充分的机会为自己进行辩护或表达自己对犯罪的悔悟,也有助于对旁听民众的法制教育。 未成年被告人在行使此项权利时,因其在智力和表达能力上的不足,可能难以充分表达意见,因此,规定在其最后陈述后,到场的法定代理人可以进行补充陈述。 这一规定,体现了对未成年被告人诉讼权利的充分保护,也有利于人民法院准确定罪量刑,对案件作出正确判决。

The fifth clause concern this clause's application to questioning of juvenile victims and witnesses. 根据本款规定,询问未成年被害人、证人应当遵守本条关于法定代理人或者相关人员到场,法定代理人可以代为行使未成年证人的诉讼权利,对询问过程中侵害未成年人权益的行为,法定代理人或到场的其他人有权提出意见,并有权阅读询问笔录;以及询问女性未成年人,女性工作人员在场等规定。

Article 271: Where juveniles suspected of crimes found in Chapters 4, 5 and 6 of the criminal law who might receive penalties of 1 year imprisonment or less and meet the requirements for prosecution, but demonstrably regret their crime; the people's procuratorate may issue a conditional non-prosecution decision. Before making a conditional non-prosecution decision, people's procuratorates shall hear the public security organ's and victim's opinions.

The provisions of article 175 and 176 of this law apply where the public security organ requests a reconsideration or review of a conditional non-prosecution decision, or the victims appeal.

Where juvenile criminal suspects and their legally-designated representatives object to a conditional non-prosecution decision by the people's procuratorate, the people's procuratorate shall issue a decision to prosecute.

【Article Topic】

This article regards provisions for when procuratorate organs handling a juvenile case may make a conditional non-prosecution decision.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

This article is divided into three clauses. The first clause concerns provisions on the requirements fro applying conditional non-prosecution. Under this clause, application of conditional non-prosecution to minors suspected of crimes shall simultaneously meet all of the following requirements: First, the crime which the juvenile is suspected of must be a crime of infringing upon citizens' personal or democratic rights as found in Chapter 4 of the Specific Provisions of the Criminal Law, a crime against property found in Chapter 5, or a crime of obstruction administration of social order found in Chapter 6. Conditional non-prosecution must not be used for crimes outside of this scope. Second, on the basis of laws, the juveniles criminal conduct might be punished by up to a year imprisonment, and where the punishment might exceed one year imprisonment, conditional non-prosecution must not be applied. It should be noted that, " up to one year imprisonment imprisonment " refers to punishment which might be used against the juvenile, rather than the statutory punishment for the crime he committed. Third, where the facts of the crime have already been investigated, the evidence is credible and sufficient, so as to meet the requirements for indictment, if the circumstances of the crime were slight, and it is not necessary to give a criminal punishment or punishment is excused in accordance with the Criminal Law, the people's procuratorate may directly make a non-prosecution decision. It should be noted that, where the facts are unclear, the evidence is not credible or sufficient, conditional non-prosecution must not be applied and supplemental investigation to clarify the facts of the crime shall be made. Fourth, the juvenile must show remorse for his crime. Demonstrations of a good, repentant attitude include actions such as: formally apologizing to the victim, actively making compensation and obtaining the victim's understanding. Only where all of the above requirements are present may the people's procuratorate make a condition non-prosecution decision for a minor suspected of a crime. At the same time, on the basis of this clause, the procuratorate should also hear the comments of the public security organs and victims before making a decision, to fully understand the circumstances of the case and the circumstances of the juvenile as an individual, and on this foundation make a judgement as to whether or not to apply conditional non-prosecution.

The second clause concerns remedies for when the public security organs and victims having objections to the conditional non-prosecution decision. According to this clause, public security organs believing that the procuratorate's conditional non-prosecution decision does not meet the statutory requirements may follow article 175 of the Criminal Procedure Law to request the people's procuratorate which made the decision conduct a reconsideration, and if that request for reconsideration is not accepted, the may request a review from the people's procuratorate at the level above. Where a victim in the case is not persuaded by a conditional non-prosecution decision, they may follow article 176 of the Criminal Procedure Law to file an appeal complaint requesting a prosecution to the people's procuratorate at the level above within seven days of receiving the written decision. The people's procuratorate shall inform the victim of its review decision. Where the people's procuratorate sustains it decision to not prosecute, the victim may file suit in a people's court, victims may also directly file suit in a people's court without having first made an appeals complaint.

The third clause concerns disposition where the juvenile suspect or his legally-designated representatives have objections to the conditional non-prosecution decision. If a juvenile suspect or his legally-designated representative believe that the juvenile's conduct does not constitute a crime, or that the circumstances of the crime are slight, so that punishment is not necessary or excused under the Criminal Law, and raise objections to the procuratorate's conditional non-prosecution decision, the procuratorate shall make a decision to prosecute and file suit in accordance with law. The people's court will make a judgment as to whether it constitutes a crime, as well as guilt and sentencing.

Article 272: During the probationary period for conditional non-prosecution, the people procuratorate will perform supervisory inspections of the juvenile suspect under conditional non-prosecution. The juvenile criminal suspect's guardian shall strengthen supervision and education of the juvenile suspect, and cooperate with the people's procuratorate in completing supervision and inspection work.

The probationary period for conditional non-prosecution is not less than 6 months and not more than 1 year, to be calculated from the day that the people's procuratorate make the conditional non-prosecution decision.

Juvenile suspects given conditional non-prosecution shall obey the following rules:

(1)Obey the laws and regulations, comply with supervision;

(2)Report the circumstances of their own activities in accordance with the observation organ's rules ;

(3)When leaving the city or county of residence, or moving home, shall report to and get the permission of the observing organ ;

(4)Accept corrections and education as required by the observation organ.

【Article Topic】

This article concerns rules for suprevision and inspection of juvenile suspects given conditional non-prosecution.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

This article is divided into three clauses. The first clause concerns the supervisory body for conditional non-prosecution. According to this clause, the people's procuratorate performs supervisory inspections of juvenile suspects who have been given conditional non-prosecution, and that their guardians will assist. Before deciding to apply condition non-prosecution for a juvenile suspect, the people's procuratorate already fully understands the case circumstances and the juvenile suspects individual circumstances, having procuratorate organs before supervisory inspections during the probationary period in beneficial to the successful completion of this work and also to linking these efforts. After the probationary period is complete, immediately make a decision to not prosecute or continue filing suit. Guardians, by definition, have a duty to raise and educate juveniles, and during the probationary period, guardians shall strengthen the discipline they give the juvenile suspect so as to assist and cooperate with the procuratorate organ in its supervision and investigation efforts.

The second clause concerns rules for during the probationary period of conditional non-prosecution. According to this clause, the period for conditional non-prosecution is six months to one year, beginning when the people's procuratorate makes the decision. In practice, the procuratorate organs should comprehensively consider the severity of the juvenile's criminal conduct, the degree of subjective malice and other such factors, to determine the specific probationary period.

The third clause concerns the specific rules that a juvenile given conditional non-prosecution shall obey, including: First, obey the laws and regulations, submit to supervision. Observing law, obeying laws and submitting to supervision are the most basic behavioral requirements of juvenile suspects under conditional non-prosecution. If it is discovered that during the probationary period they have newly perpetrated a violation or committed crimes, however, they shall be publicly prosecuted and bear other relevant legal consequences. Second, follow the inspection organs rules to report their own activity. During the probationary period, procuratorial organs shall have a good grasp of the person under conditional non-prosecution's activities as well as having a grasp of trends in their thinking and behavior, so as to prevent a new crime. The juvenile under supervision should follow the inspection organ's requirements that he report his own activities, to provide a consultative basis for appraising the efficacy of the probation. Third, when leaving their city or county of residence or moving house, they shall report and get permission from the observation organ. Juveniles under supervision that are leaving their original place of residence or are moving house might elude the supervision and inspection of the procuratorate organs, and moreover, conditional non-prosecution is a state in which the criminal prosecution is still not complete so persons under conditional non-prosecution might be indicted, and people's procuratorates need to keep abreast of their whereabouts, therefore, persons given conditional non-prosecution needing to leave of change residences must report for approval to the observation organ. Article 4, accept correction and education in accordance with the observation organs requirements. After the observation organ decides to conditionally non-prosecute, they may decide to adopt certain corrective and education procedures directed at the characteristics and circumstances of the person given conditional non-prosecution, beneficial to their understanding their errors and turning over a new leaf. Persons given conditional non-prosecution must follow the observation organs requirements to participate in correctional and educational activities arranged by the observation organ.

Article 273: Where juvenile criminal suspects given conditional non-prosecution have any of the following circumstances during the probationary period, the people procuratorates shall revoke the conditional non-prosecution decision and initiate a public prosecution:

(1)Commits a new crime, or it is discovered that they committed another crime that must be pursued for criminal responsibility before the conditional non-prosecution decision;

(2)Violate public security management rules or supervisory management rules of the organ enforcing the conditional non-prosecution probation, where the circumstances are serious.

Where juvenile criminal suspects given conditional non-prosecution do not have any of the circumstances described above during the probationary period, the people's procuratorate shall issue a non-prosecution decision when the probationary period is complete.

【Article Topic】

This article provides rules for those applying conditional non-prosecution in deciding whether to prosecute or make a non-prosecution decision.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

This article is divided into two clauses. The first clause concerns revocation of conditional non-prosecution and indictment for juvenile suspects. On the basis of this article, in the following two situations the procruatorate organs shall revoke the conditional non-prosecution decision and initiate a prosecution: First, if the juvenile suspect given conditional non-prosecution has committed a new crime during the probationary period or it is discovered that there was additional criminal conduct before the conditional non-prosecution decision was made, which needs to be prosecuted. In this circumstance, regardless of whether the newly committed crime or overlooked crime was a serious offense, the procuratorate organs should always revoke the conditional non-prosecution decision for the juvenile in accordance with law, and initiate a prosecution. The people's court will follow the Criminal Law in given an appropriate sentence. Second, if there is conduct in violation of either security administration provisions or the observation organ's rules for supervision and inspection during conditional non-prosecution, and the circumstances are serious. Violations of public security management provisions are unlawful conduct and only when the circumstances of the unlawful conduct are serious should a decision to revoke conditional non-prosecution and initiate a public prosecution be made. "Serious consequences" primarily include violations of public security administration provisions where the circumstances were serious or multiple violations of public security administration provisions where the offender refuses to reform after repeated admonishment, and similar situations. Violates of conditional non-prosecution rules during the probationary period refers to violation of the rules that Article 272 of the Criminal Procedure Law provides that juveniles given conditional non-prosecution shall follow and submission to supervision: follow the observation organs' rules to report one's own activity, report for permission to the observation organ when leaving the city or county of residence or when moving house, follow the observation organs requirements for accepting corrections and education. Violations of the above provisions on supervision provisions should first be met with education, and only when the juvenile reaches the level where the 'circumstances are serious' should the conditional non-prosecution decision be revoked and prosecution initiated. Here, 'serious circumstances, primarily indicates that in the violation of the supervisory inspection rules, the circumstances were serious or situations where there were multiple violations of the supervisory inspection rules.

The second clause regards procuratorate organs making a decision to not prosecute after the completion of the probationary period. According to this clause, if during the probationary period, a juvenile given conditional non-prosecution has not committed a new crime and no overlooked crimes from before the decision have been discovered; and they have not committed an violations of public security administration provisions or violated the observation organ's supervisory inspection rules where the circumstances were serious; then at the completion of the probationary period, the procuratorate organ shall make a decision to not prosecute in accordance with law.

Article 274: In cases where the defendant is not yet 18 years-old at the time of trial, do not hold an open trial. However, with the consent of a juvenile defendant and his legally-designated representative, the juvenile's school and child welfare organizations may appoint representatives to appear.

【Article Topic】

This article concerns the principle of not having open trials in juvenile cases.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

The second clause of article 152 of the pre-revision Criminal Procedure Law had the following provision on not having public trials in juvenile cases: "cases where juveniles 14 to 16 years old commit crimes, they are without exception to be closed trials." In cases where juveniles who are 16 years-old, but not yet 18 years-old, are usually not tried in public trials. " This article has a few differences with the provision above: First, it clearly states that all cases of a juvenile who is not yet 18 are to be tried in closed trials. At the same time, it further clarifies that trial is the final time for measuring whether the defendant is 18 years old , resolving the problem from practice of an inconsistent understanding of whether it is the 'age at the time of the crime', or 'age at the time of trial' which determines whether a juvenile trial is closed. Second, it makes an exception to the principle that juvenile cases are not open, that upon the consent of him or his legally-designated representative, designated people may appear as observers at the trial of a juvenile.

There are two levels of meaning to this article: one is that in cases where the defendant is not yet 18 years old, do not try the case openly. When people's courts are reviewing cases initiated by the people's procuratorates involving juveniles, they shall earnestly perform a verification of materials showing the juvenile's age, if the defendant is not 18 years old at the time the people's court decides to hold a court session, it will not be publicly tried. In juvenile cases that are not tried publicly, it is not permitted to either have persons outside of litigation participants observe the trial or to have media report case circumstances. The second regards the provision for the exception to the principle of closed trials, where upon the defendant or his legally-designated representatives' consent, representatives from the juvenile defendant's school or a child protection organization can appoint representatives to appear. Providing for these persons to appear is principally to facilitate their learning about the relevant case circumstances, and conduct legal system education for the juvenile after trial is complete. In recent years, a few areas have been conducting explorations with educating juveniles following the court judgment, and this provision is beneficial for developing this kind of education. However, appearance by these people must receive the consent of the juvenile or his legally-designated representative. If the defendant or his legally-designated representative do not agree to others appearing for reasons such as protecting privacy, the court shall respect their opinion.

Article 275: The relevant criminal records shall be sealed for those who were not yet 18 years-old at the time of the offense and were sentenced to 5 years or less imprisonment.

Where criminal records are sealed, they must not be provided to any workplace or individual, except where necessary for judicial organs case-handling or relevant workplace inquiries made on the basis of national regulations. Workplaces making inquiries in accordance with law shall preserve the secrecy of the sealed criminal records.

【Article Topic】

This article concerns sealing the juveniles' criminal records.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

This article is divided into two clauses. The first clause concerns sealing records for juvenile offenders who had not reached 18 years of age at the time of the crime and have been sentenced to less than five years imprisonment. On the basis of this article, sealing of criminal records shall meet the following requirements: First, the age requirement uses the time of the act as its standard, with the juvenile not yet 18 years old at that time; Second, the punishment requirement, based on an effective court judgment, the juvenile was given a punishment of less than five years imprisonment. If, on the basis of the Criminal Law, the juvenile was sentenced to a punishment exceeding five years imprisonment, this means that his conduct was very harmful to society, and that he personal dangerousness is quite large, so that sealing his criminal record would not be beneficial to bringing about the Criminal Law's function in protecting society. The criminal records to be sealed include all types of materials related to the juvenile's crime that were formed during the investigation, review for prosecution and trial processes. Judicial organs sealing the criminal records of eligible juveniles not only should only adopt measures for keeping the juvenile suspect or defendant's materials confidential, and properly stored.and not released to the outside for non-statutory matter. When relevant parties request proof of whether the juvenile has a criminal record, judicial organs shall not provide proof that the juvenile has a criminal record. In addition, article 100 of China's Criminal Law provides that when persons who have received a criminal penalty in accordance with law enter the army or employment, the shall honestly report that they have been criminally punished, and must not conceal it, but persons who were not yet 18 years old when the crime was committed and were sentenced to less than five years of criminal punishment are excused from the above duty to report.

The second clause concerns provisions that criminal records must not be provided to any work-unit or individual, and exceptions. Judicial organs must not provide criminal records that have been sealed to any work unit or individual, except where in circumstance provided as exceptions by law, and must not permit others to read, copy or reproduce the juvenile's criminal materials. This clause provides two exceptions where a review of the juvenile's criminal record may be conducted: First, as necessary for judicial organs handling cases. When judicial organs handing specific cases need to obtain leads or information relevant to sentencing from a juvenile suspect or defendant's criminal record, they may query the criminal record. Second, relevant work units may conduct queries on the basis of national legislation. In this circumstance, the concerned work unit must follow the legal provisions and can only query matters designated by law. At the same time, this clause provides that the querying work-unit has a duty of confidentiality, that the work unit conducting a query in accordance with law shall keep the circumstances of the sealed record confidential, and that the information obtained can be used only for designated manners within a designated scope.

Article 276: Except where this chapter has provided otherwise, follow this law's other provisions in handling juvenile criminal cases.

【Article Topic】

This article concerns the application of law in handing juvenile criminal cases.

【Article Summary】

This article was added in the "Decision on Amending the Criminal Procedure Law" passed by the Fifth Plenary Session of the Eleventh National People's Congress on March 14, 2012.

The is article provides that except as otherwise provided in this chapter, judicial organs handling juvenile criminal cases, apply other relevant provisions of the Criminal Procedure Law. On the basis of this article, when handling of juvenile cases, where this chapter has a provision the provisions of this chapter are applied, where this chapter has no provisions, obey the other relevant provisions of the Criminal Procedure Law on case handling.

Source: China National People's Congress Online; February 10, 2014

 

 

 

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