Table of Contents
I. The Family Education Law: Children’s Place in Families, Families’ Place in the State and Society
II. Protection of Minors in the Family
III. State custody and protective measures
IV. Prevention of Mistreatment
- Mandatory Reporting of the Mistreatment of Minors
- Special Protections from Sexual Misconduct
- Offender Lists
V. Protection of Minors Online
- Content Regulation
- Minors Conduct Online
- Preventing Exploitation
- Internet Addiction
- Identifying minors online
- Online Protection of Children’s Personal Information
VI. Student Bullying
VII. Prevention of Delinquency
- The Criminal Law
- Responses outside the Criminal Justice System
- Specialized Schools
Children and the Law in China: An overview of recent reforms.
With the revision of three key laws, China has begun a revolution in its legal framework relating to children. The reforms are sweeping and have already begun to reshape the daily lives of children and their families, legislating even minutiae like the amount of homework teachers can assign[i] and the hours at which children can play games online.[ii] The overhauled Law on the Protection of Minors lays out the specific obligations of every aspect of society in ensuring the rights, health, and dignity of minors. It provides rules and procedures for guardianship, education, the internet, and privacy. The Law on the Prevention of Juvenile Delinquency addresses unacceptable behavior by minors and introduces a graded system of interventions. Finally, with the new Law on the Promotion of Family Education, the state enters the domestic sphere, mobilizing the whole of society to support families in raising children.
These new laws contain many positive developments for protecting the best interests of minors. Legislation in this area, however, requires subjective judgments about what is and isn’t suitable for minors, so the laws also reflect the state’s concerns about its children today, and its hopes for the citizens they will become. In reworking these three laws that respectively create a framework of standards for how children must be treated by others, how they must behave, and even how they should be raised at home, the state has crafted and codified its vision of a positive childhood. At the same time, having opened the door for state legislation of family relations, the laws mark a shift not only towards increased willingness to legislate domestic matters, but also in beginning to treat the family as part of the bureaucratic framework, making it the final link for implementing state policy.
The scope of the reforms is massive and ongoing, and this article will attempt to briefly introduce some of the most critical reforms and provide necessary context. It begins with a consideration of the status of the family, and of government interventions to prevent child abuse and neglect. This is followed by discussions of protections for minors online, bullying, and finally juvenile delinquency. The focus throughout is primarily on introducing the laws and the problems they seeks to address, but also in considering what these new rules mean for, and say about, Chinese society, and the relationships of the family and state.
I. The Family Education Law: Children’s Place in Families, Families’ Place in the State and Society
All laws relating to families or children must make assumptions about their needs and proper behavior, but few address these issues as directly as the new Family Education Law.[iii] Family education, as used in the law, refers to the guidance provided by adults to their children in order to promote their overall health and development of mind, body, ethics, and character. [iv] Put more simply, family education refers to parenting, and the law is aimed to make parenting a state affair. The law offers a clear vision of both the ideal content and methodology for family education, but it also goes further, extending responsibility for family education beyond immediate family members, and mobilizing resources across the whole of society. Where guardians are found to not be fulfilling their parenting obligations, the acceptance of outside support and guidance can sometimes become mandatory.
A. The Content of Family Education
At times, the function of family education presented in the law is unapologetically political, aimed at fostering the development of model citizens and building a unified cultural identity. The first of six listed content areas for family education concerns instilling a love of the Communist Party, socialism, the nation, and its people, and stresses the importance of national unity. [v] The primary method for conducting family education is the study and practice of the “Core Socialist Values” (a ubiquitous morality campaign launched by the government), as well as China’s traditional culture, revolutionary culture, and socialist culture.” [vi]
While less political, the remaining content areas equally plainly state the values that should be encouraged; succinctly summarizing the state’s understanding of the best interests of children, which resonates throughout related reforms. Minors should be taught to respect the elderly and care for the young. They should embrace labor with a “correct” view of success and accomplishment and cultivate “healthy aesthetic” sensibilities. These themes have already resurfaced in prohibitions on content that glamorizes wealth or promotes ‘distorted aesthetics’ such as the youth ‘culture of despair’ or admiration of ‘effeminate men’.[vii] Minors should be taught to care for themselves physically and mentally, through nutrition, exercise, adequate sleep, balanced interests, and avoiding internet addiction – the goals used to justify the near total ban against off-campus tutoring and online video games in an effort to relieve minors of excessive burdens and distractions.[viii] Minors should learn to protect themselves from danger and abuse, and be taught the law to help them avoid becoming the victims, or perpetrators, of crimes.
B. Family Relations
A second focus of the Family Education Law is on familial relationships and parenting strategies. Here the law expressly speaks to how families should be structured and run, setting goals for parental behavior. Families are told to treat children as equals, respecting their rights to participate in family affairs in accordance with their development and capacity.[ix] Family education should not formal education, but should be integrated into daily life, with guardians teaching by setting positive examples. Discipline should be strict, but tempered, creating family bonds that are mutually supportive. [x]
There is a clear preference in the Law for guardians to raise their children themselves rather than entrusting care to others such as grandparents.[xi] Even after divorce, or where parents live apart from their children, they maintain the primary responsibility for educating their children, and must remain in touch with them.[xii] Courts have already demonstrated a willingness to issue orders under the Family Education Law requiring guardians to attend parenting classes where they are not in regular communication with their children, or where their children are exhibiting behavioral problems.[xiii] While the law is always careful to acknowledge some diversity in family structures by mentioning “parents or other guardians”, it stresses that the “roles of both a mother and a father” should be actively involved in family education, clearly envisioning a two-parent heterosexual nuclear family.[xiv] The gender bias in what these roles entail is hinted at in the law’s call for China’s Women’s Federations to give play to the “special role of women in promoting family values and establishing positive families”. [xv]
C. External Support and Coordination
The heart of the Family Education Law, however, relates to promoting full-society involvement in the raising of children through a model described as “family responsibility with state support and social coordination”. The bulk of the law’s text is devoted to describing how the promotion of family education fits within the respective duties of various institutions. Provincial governments are to establish online platforms to offer classes and parenting supports. [xvi]The various government agencies are encouraged to incorporate guidance on family education when performing functions related to family life such as marriage registrations, adoptions, and divorce proceedings.[xvii] Schools are also to offer parenting guidance and to coordinate closely with families on integrating academic and family education goals. [xviii]The media, libraries, cultural centers, and other public facilities should all promote awareness of family education obligations and available support services.[xix] Civil society groups are encouraged to provide counseling and related services that the government might incorporate into its own work through procurement or subsidies. [xx]
In addition to support and coordination, the ground is also loosely laid for a broad range of government and social interventions. Local communities, schools, and other entities that have close contact with minors or their guardians are to encourage good family education practices, and schools are required to offer parenting guidance when students are disciplined.[xxi] Where police, prosecutors, or courts find that guardians have failed to properly conduct family education so as to infringe the rights of minors, they may order them to accept family education guidance. [xxii] The goal of these interventions is framed as improving and re-orienting family education rather than punishment, but penalties for violating a court order are in place to ensure compliance.
Families are in effect placed within a bureaucratic framework for the raising of children that is typical of how China’s regulatory hierarchies are organized for other efforts. In Chinese legal speak: They have primary implementation responsibility for raising their children, but also vertical and lateral oversight of their efforts, as well as cooperation from other departments within the scope of their various duties. There is additional oversight for various entities’ performance of their duties, and legal consequences for failures. Through the law, families become not just the “fundamental unit of society”, but one of the ‘relevant units” for implementing family education, and the oversight of guardians becomes a type of personnel management.
II. Protection of Minors in the Family
A. Guardian’s Duties of Protection
Where the goal of the Family Education Law is fostering nurturing family relationships and promoting the healthy growth of minors, the Law on the Protection of Minors (LPM)[xxiii] is more concerned with minimum standards of care and duties to protect minors. As in its earlier versions, the new LPM is divided into chapters based on the obligations of different groups to protect children: family protection, school protection, societal protection, online protection, government protection, and judicial protection; with the chapter on Family Protections describing the duties that parents and other guardians bear in protecting their children.
Parents’ general duties to raise, educate, and protect minors are included in the Civil Code and earlier laws, but it is only in this most recent revision of the LPM that the specific duties of all guardians are listed in detail for the first time. The new law puts forward 10 affirmative obligations of guardians and 11 prohibitions, and further creates mechanisms for state intervention where guardians do not fulfil their duties, including even taking state custody where minors are minors are found to be at risk.
The basic duties of guardians under the LPM are to protect and be attentive to minors’ physical and mental well-being; to teach them to be moral, law abiding, and able to protect themselves (i.e. to conduct family education); to ensure that they attend compulsory education and have adequate time for rest and recreation; to protect and manage minors’ property; and to act on their behalf in a legal capacity. [xxiv]Additional articles provide further duties and elaboration, including the need to use appropriate safety precautions in homes and vehicles, to report to the authorities about any abuses or violations of the minors’ rights, and to consult with minors in an age-appropriate fashion when making decisions that impact them.
The prohibitions for guardians are closely related to these duties, and are sometimes simply an inverse phrasing, as is the case with the prohibition on allowing minors to drop out of compulsory education, or on illegally disposing of their assets. Others help clarify what is meant by a minor’s well-being by providing examples of serious failures to perform duties of care and protection. These include directly abusing or abandoning minors, or allowing them to participate in illegal conduct. More specific examples involve allowing minors to smoke, drink, or enter venues such as bars where minors are not allowed, and the more subjective prohibition on letting minors become involved with forbidden ideologies such as cults, extremism, and separatist movements. A final group is responsive to perceived social concerns, such as the prohibition against allowing children to become addicted to the internet, to work illegally, or be forced into marriage. [xxv]
Children are the subjects and direct beneficiaries of these guardianship duties, but as they are legal obligations, they are also duties owed to society. This means that their implementation is no longer exclusively a family concern, but can be enforced by the state. As above in the context of family education, family life is increasingly brought within the regulatory framework.
B. Entrusting Care
Where guardians are unable to perform their guardianship duties, they may have someone else do so on their behalf. In the previous versions of the LPM, this was referred to as ‘entrusting guardianship’ (委托监护), but the new law uses the terms “entrusting care” (委托照护) or “surrogate care” (代为照护).[xxvi] This change emphasizes that no formal reassignment of guardianship occurs when entrusting care, and that the original guardians still bear ultimate responsibility for protecting the minors. Guardians are even expressly required to contact the minors and the caretaker at least once a week in order to remain current on their situation, and to intervene when they learn of any problems.
As noted in discussing family education, there is a preference for guardians to directly care for their charges. The decision to leave a child with a caretaker is not solely at the discretion of the guardians, who must have a legitimate reason for doing so, such as incapacity or unavailability due to travel or relocation for work. They must also notify the minors’ schools and the residence committees of the minors’ whereabouts and of the entrusted caretakers’ identities. Generally, guardians can entrust any legally competent adult as a caretaker, but guardians are advised to consider a person’s capacity and morals, as well as the wishes of the minor. Persons who have records of crimes such as abuse, abandonment, human trafficking, or violence must not be selected, nor should those with substance abuse or gambling problems, or who already have a history of failing to perform guardianship duties.
Neighborhood resident and villager committees are charged with overseeing the performance of guardianship duties including family education. [xxvii] These committees are made up of concerned members of the community they serve, often retirees, and act relatively independently of government departments to perform a variety of “final step” functions in the implementation of state policies, such as ensuring awareness of benefits programs, helping with enrollment, posting educational materials, community mediation, and monitoring community conditions. The extent of their initiative and involvement varies greatly across regions, and even between individual committees in the same city. The grant of oversight of guardianship is largely an invitation to involve themselves in their neighbors’ family situations, allowing them to discourage, criticize, or stop guardians who are not performing their duties, or who are infringing on minors’ rights and interests.
Where resident or villager committees encounter abuse or serious problems with guardianship, however, they must report it to the police. The police will investigate any violations of laws, of course, but they are also empowered to order families with serious guardianship problems to accept family education classes or guidance even if no laws were broken. Courts and prosecutors’ offices handling cases involving children also have the authority to order parties to participate in this family education, regardless of whether the perceived need is directly related to the subject matter of the case. This creates a connection between the LPM and the Family Education Law which provides more detail on the structure, implementation, and content of these parenting classes.
III. State custody and protective measures
Deciding when the government should actively intervene to adjust childcare arrangements is never an easy task. It requires the state to determine that a minors’ current situation is so unacceptable, that disruptive changes to their family situation are preferable and in the best interests of the child, even if contrary to the family’s (and minors’) wishes. There are additional challenges in China in that it remains dominated by single-child households, often with multiple generations focused on a single child, and has a population that can lack confidence in court decisions. China is also still addressing the impact of rapid urbanization, including millions of children who are ‘left-behind’ when their parents leave villages to find work in more developed cities, raising questions of abandonment and adequacy of care. Chinese law has long allowed for the courts to terminate guardianship rights, but their reluctance to sever family bonds, and a lack of suitable alternative placements for children, had left these largely unused.
The LPM works to create a tiered system of interventions including protective orders – which might modify custody arrangements, temporary and emergency placements, and revocation of guardianship rights. In doing so, it draws heavily on a 2014 document released by the nation’s highest justice and law enforcement organs and the Ministry of Civil Affairs shortly before the adoption of China’s first Domestic Violence Law. These Opinions on Violations of Minors’ Rights by their Guardians, not only addressed the trial of individual cases, but began the formation of an entirely new framework for government interventions to protect children.[xxviii]
The Opinions called for a multi-disciplinary response in such cases, involving schools, social workers, and law enforcement, and emphasized education and counseling. These efforts are to be coordinated by child protection agencies created under the authority of the civil affairs departments. The Opinions also provide further content on the mandatory reporting of violations, use of protective orders, temporary placements, and clearer procedures for the termination of guardianship rights. Many of these provisions have since been incorporated into the LPM, but because they were drafted and adopted by the implementing agencies themselves, they often include a level of operational detail beyond the more recent legislation. They are likely still effective to the extent they have not been specifically contradicted.
For the emergency removal and placement of children, the 2014 Opinions held that when police responding to reports of abuse or neglect find that children are unattended, injured, or at risk of serious harm, they are to immediately remove them and take them to a “temporary caretaker”.[xxix] These caretakers could be the minors’ other guardians, relatives, residents/villagers committees, or the civil affairs departments’ child protection agencies. Caretakers were required to provide emergency shelter and daily care, and held a duty to protect the child; but only where the caretaker was a child protection agency was it referred to as temporary “guardianship”, suggesting a more complete assumption of guardianship duties.
The LPM seems to have slightly modified this formulation to make the role of civil affairs departments more central. The civil affairs departments are now required to assume temporary guardianship where a minor is homeless and cannot be identified, where no eligible guardians can be located, where guardians are unable to perform their duties or refuse to do so – leaving minors uncared for, as well as in situations where guardians directly pose a physical threat to minors or have involved them in illegal activities. Only after taking temporary guardianship, may the civil affairs departments then “entrust care” of the minors to their relatives or foster care, or place them with a child protection agency or child welfare establishment. [xxx]
The LPM does not provide a specific time limit for this temporary guardianship (the Opinions hold that it should usually be less than one year[xxxi]), but distinguishes it from long-term guardianship – in which a child may be placed for adoption. Civil affairs departments will take long-term custody in three situations: where their guardians cannot be identified after a search; where the guardians have died or are incapacitated and there is nobody eligible to take on guardianship; and where a court has already revoked guardians’ qualifications and given custody to the civil affairs departments. With the exception of court termination of guardianship, it is the civil affairs departments who will determine when these conditions are satisfied, and they are also empowered to make assessments and decisions regarding adoptions of their long-term charges.
B. Guardianship and the Courts: Protection orders and revocation of guardianship.
The court’s impact on family relationships proceeds through two methods, personal protection orders and revocation of guardianship qualifications. Both procedures require an application by an interested party, which can include guardians, temporary caretakers, village/resident committees, civil affairs departments and their child protection agencies, schools, and groups specifically charged with protecting minors such as the Women’s Federation or Communist Youth League.
Courts power to issue protective orders outside of a specific case was expanded in the 2015 Domestic Violence Law, but such orders existed previously when incidental to litigation and were thus available to be included in the earlier Opinions on Violations of Minors’ Rights by their Guardians as well. The Opinions primarily treat protection orders as an emergency measure taken before or during proceedings for the termination of guardianship rights, and they are therefore based on the same types of misconduct by guardians. Through protection orders, courts can take protective measures such as requiring an abusive parent to move out of the minors’ residence, to stop having contact with them, or to stop specific misconduct.[xxxii] Protection orders are also available to protect caretakers and minors from retaliation after a termination of guardianship rights.
Three basic grounds for terminating guardianship rights are provided in the Civil Code: Physically or mentally harming the charge, placing a charge in danger by either failing to perform guardianship duties or being unable to perform them and refusing to allow others to assist, or otherwise seriously violating the rights and interests of a charge.[xxxiii] The Opinions provide a more detailed consideration of where these criteria are met in situations of the abuse, neglect, or exploitation of minors. Abusive conduct qualifies where there is sexual abuse, violence, trafficking, abandonment, or other serious injuries to a minor’s physical or psychological health. [xxxiv] Neglect can include a lack of supervision that persists even after being told it is unacceptable, a refusal to perform guardianship duties for 6 months that seriously disrupts a minors life; of where a guardian’s own vices such as alcohol, drugs, gambling, or crime interfere with their ability to act as guardians, and they refuse to entrust some duties of care to someone who is more able. Exploitation of children for begging can result in termination of guardianship rights if it continues after multiple warnings, as can involving minors in illegal activity, if the circumstances are particularly bad.
Although these provisions remain quite vague, there is a clear intent to ensure that only the most serious situations should result in a termination of guardianship. The grounds of failing to supervise and exploiting minors for begging both include a preliminary warning requirement and an opportunity for reform. A refusal to perform guardianship duties must persist for at least half a year and cause ‘serious’ disruptions, while involving minors in illegal activity requires aggravating factors to make the circumstances ‘vile’, and even direct abuse must cause ‘serious’ harm. A failure to perform guardianship duties resulting from the guardians’ own misconduct such as substance abuse or their serving a prison term, rights will only result in termination of guardianship where they refuse to allow others to assist them.
Moreover, restoration of guardianship rights is also possible. The Civil Code allows that courts may reinstate guardianship following an application and show of remorse by the parents (not all guardians), except where they have committed an intentional crime against the minors.[xxxv] The courts have discretion to make individualized determinations regarding restoration in consideration of the guardians’ situation as well as the wishes and best interest of the minor. The Opinions on violations by guardians again provide more detailed procedures, clarifying that applications for restoration must be made within 3 months to 1 year of the revocation of guardianship, essentially creating an initial period of temporary revocation.[xxxvi] Only in exception situations, however, would restoration ever be available to serious offenders, such as those who sold or sexually abused children, abused or abandoned children repeatedly for more than 6 months, or caused serious injuries, as well as those who were sentenced to 5 years or more imprisonment for crimes against the child.
IV. Prevention of Mistreatment
A. Mandatory Reporting of the Mistreatment of Minors
Mandatory reporting systems are a critical tool for the discovery of violations against minors, and can aid in preventing further harm from occurring. Making the reporting of suspected abuse and neglect a legal requirement can also help avoid situations where school officials or others caring for minors try to conceal it for fear it could reflect badly on their institution.
While mandatory reporting may sound like a straightforward concept, it can be both legally and logistically complex. Questions such as who is a mandatory reporter, what content merits reporting, and the consequences for failures to report or for making false reports must be answered to clarify obligations and liability. The party tasked with receiving reports needs to be specified to indicate whether internal reporting to superiors is adequate, or whether police or another outside authority should be contacted. The procedures for screening, investigating, and resolving reports must also be spelled out to ensure that they are acted on in a timely fashion and that clumsy investigations do not aggravate a potentially volatile situation. Where reports are substantiated, there must be systems in place for appropriate interventions, and decisions must be made as to whether records should be kept of even unsubstantiated reports and what their use might be in future proceedings.
Momentum began to grow for a national mandatory reporting system in China in 2013. The country had been rocked by a series of high-profile cases of sexual abuse of minors, many involving their teachers, and in response, new rules were jointly released by the courts, procuratorate, Ministry of Public Security, and Ministry of Justice.[xxxvii] Most of the new rules involved increased protections for minor victims following abuse and ensuring that offenders received harsh penalties, but a clear obligation was also crated for all citizens to report suspected sexual abuse of minors. [xxxviii]Police were further required to investigate all such reports immediately and to employ protective measures where even the possibility of abuse was found- including temporary placement and care. [xxxix]
In 2015, China’s Domestic Violence Law incorporated a mandatory reporting requirement for all domestic violence against minors. The law’s definition of domestic violence includes a wide range of misconduct between family members, including physical and psychological attacks, as well as recurrent verbal abuse or intimidation, expanding the scope of conduct for mandatory reporting well beyond sexual abuse.[xl] At the same time, the scope of the Domestic Violence Law’s mandate is also limited to reporting conduct that occurs between family members, and the range of mandatory reporters is limited to those with special duties for the protection of minors, such as schools, medical establishments, resident/villager committees, social workers, and welfare organizations. [xli]
The scope of both reportable conduct and mandatory reporters was again greatly expanded in 2020 with the release of the first legal authority entirely devoted to mandatory reporting systems: the multi-departmental Opinions on Establishing a Mandatory Reporting System for Violations against Minors. This document called for all public employees, or others performing state functions, to be mandatory reporters, as well as those working closely with children.[xlii] This final category includes those with special duties towards children, such as educators, care takers, medical professionals, aid workers, and guardians, but also any others who regularly interact with children in their work, such as hotel or public venue operators. [xliii]
The scope of reportable conduct in these Opinions focuses on the indications of abuse that must be reported, as well as their causes. Sexual abuse, for example, is included as the requirement that any abnormal injuries to genitalia or other “private areas” be reported, as must any pregnancy, abortion, or miscarriage of a girl under 14 (China’s age of consent). Older minors’ pregnancies need to be reported only where there is additional reason to suspect they resulted from rape. Domestic violence is included as a basis for reporting, alongside bullying, abuse, beatings, or drugging of minors. Reports are also required for children who are exploited through trafficking or organized begging. Children who are lost, unidentified, abandoned, or have been left unattended for long periods must be reported, as well as those showing other signs of neglect such as malnutrition. [xliv]
As the Law on the Protection of Minors is concerned with comprehensively preventing all violations of minors’ rights and interests, it lays the foundation for an even more expansive reporting system. It requires that state organs, resident/villager’s committees, or entity’s working closely with children, and their respective staffs, report all known or suspected threats to minors’ physical and psychological well-being or face regulatory sanctions.[xlv] It clarifies that the police, civil affairs departments, and education departments have the responsibility to receive and address these reports, and calls for the establishment of a unified national hotline for reporting.
The Law also creates four additional mandatory reporting obligations aimed at guardians, schools, online businesses, and hotels. As part of their duties, guardians must look into any violation of minors’ rights and interests, and are required to report ‘serious’ violations.[xlvi] Schools are required to report injuries, serious bullying, sexual abuse, or sexual harassment to either the police or education departments. [xlvii] Online businesses are required to report users who publish or spread information that endangers minors to either internet regulators or the police, and any use of online services to commit crimes against minors must be reported to the police.[xlviii] Hotels are required to pay special attention to minors checking in with adults, and confirm their identities and the contact information for their guardians. Where they suspect that any violation or crime might be taking place, they must immediately report to the police and contact the minors’ guardians. [xlix]
B. Special Protections from Sexual Misconduct
As suggested above, sexual abuse of minors is a particular area of public concern. The recent revisions of the LPM mark the first time that the possession of child pornography has been expressly prohibited by a law.[l] Earlier versions of the LPM banned the creation or transmission of such materials, but ‘possession’ was only added this year. The penalty for violating this provision isn’t clear, especially as possession is not penalized in the Criminal Law which, like the earlier versions of the LPM, only addresses creation, transmission, and organizing of pornography. In recent years, the Criminal Law has already been repeatedly amended to address sexual abuse of minors, and it would not be surprising to see a new offense criminalizing the possession of child pornography to align with the LPM in the near future.
In 2015, China extended criminal law provisions on indecency and molestation to include male victims for the first time; a change that applies to adults as well as minors, but allows for heavier sentences when involving minors.[li] Previously, sexual abuse of males was addressed only as ordinary physical assault, ignoring the unique harms of sexual abuse. The penalty for molestation is up to 5 years imprisonment, and potentially higher where there were aggravating factors making it especially heinous, which a 2020 amendment has clarified as including having multiple victims, multiple offenses, multiple offenders involved, or where the abuse causes physical injuries.
The offense of rape still applies only to female victims. The 2015 amendments did however close one perceived loophole in statutory rape laws by abolishing the offense of “patronizing child prostitutes”. [lii]The minimum penalty for that offense was actually higher than that for rape, but while rape is punishable by death in China, the prostitution charge carried a maximum punishment of 15 years. Since its introduction in 1997, the prostitution offense had come to be viewed as a shield for statutory rapists, where arguing that sex was voluntary and transactional could help them avoid the most serious penalties. Not only did this protect the offenders, but it also placed blame and stigma on the child victims, exacerbating the original injury and discouraging them from seeking help. Following abolition of this offense, the proper charge for sex with girls under the age of consent (14) is now rape.
The 2020 amendments also added a new offense for guardians or others with a special duty of care, such as doctors and teachers, to have sex with females aged 14-16 in their care.[liii] This is remarkable in that it punishes sex with minors above the age of consent, and regardless of their consent, so long as the special relationship exists. Prior to this amendment, prosecutors had felt unable to argue that consent was invalid due to duress or coercion where a child was over 14, a situation highlighted by a high-profile case involving a man having sex with a girl he had unofficially adopted. [liv]Rather than guiding prosecutors and courts in making deeper inquiries into a minor’s consent, the amendment created a new offense with a bright line rule that essentially provides consent is irrelevant in certain cases. The charge however is not rape, and is punishable by a maximum of 10 years imprisonment, although prosecutors can still bring rape or other charges as well, if they feel they can prove a lack of consent.
Additional punishments for rape of minors were also added for situations where the minor was under 10 years-old or suffered injuries as the result of the rape.[lv] Under existing law, the base penalty for rape is 3-10 years imprisonment, with rape of an underage victim being a circumstance calling for a penalty at the higher end of that range. There Criminal Law had already listed of a number of aggravating circumstances that could justify longer sentences, or and even death, and the rape of girls under 10 or rape that causes injury to girls under 14 is now included as one of these aggravating factors.
C. Offender Lists
A number of new rules have also been created specifically to prevent sexual misconduct by caretakers against their students. At the forefront of these is the standardization of a background check system for those working in close contact with children, including staff of all entities that have duties towards minors such as for education, training, guardianship, aid, care, or medical treatment.[lvi] These entities must make inquiries on a government-created list of persons with a history of sexual assault, abuse, human trafficking, or violence, both when hiring new employees and in annual reviews of all employees, and reject or dismiss those anyone found to be on the list.
This is an expansion of a sex offender list system aimed exclusively at teachers and other school staff which was implemented shortly before the revised LPM was finalized.[lvii] Under the rules and procedures released for that list, not only persons convicted of sex crimes were included, but also two groups of offenders whose cases never even went to trial. [lviii]First were those that prosecutors believed had committed the offense but had decided not to prosecute because the offense was minor enough to not require criminal penalties. The second group was persons who received administrative punishments for indecency – which are lighter penalties that are directly implemented by the police without review by a court. Given that inclusion on the list amounts to a prohibition on employment in schools, serious questions of fairness surround the decision to include those who had never faced trial. It is not yet clear whether the broader list mandated in the LPM will have similar provisions, but the expanded range of professional bans make it even more important to consider the process.
Finally, the Ministry of Education’s new rules for teachers take the list system even further. In addition to crimes and violations, teachers and staff must be fired, stripped of teaching credentials, and listed as banned from the profession where they exhibit a wide range of inappropriate sexual conduct or harassment on campus.[lix] This includes not only sexual relations or sexual touching, but also making sexually suggestive comments to students, showing pornographic or obscene materials to students, and even being in possession of pornographic materials in any form on campus. Where not involving criminal activity, these cases will be considered solely by schools and the administrative authorities in charge of credentialing teachers, meaning that the loss of jobs and opportunities will again not normally be reviewed by a court.
V. Protection of Minors Online
The internet has expanded children’s universe. It provides them with unprecedented resources for research and education, the ability to connect with distant relatives, and opportunities to play and interact with kids across the globe. These new opportunities to explore the world, however, have also exposed children to a greater range of risks, such as from cyberbullying and inappropriate content. Financial and sexual predators may solicit minor’s personal information, such as phone numbers and addresses, bringing “real-world” threats to their doorsteps. But because these interactions, good and bad, are normally mediated through a screen, it is both harder for children to appreciate the risks involved, and for parents to remain sufficiently aware of their children’s conduct to provide adequate supervision.
Over the last several years, China has increasingly attempted to address these problems through legislation. While the desire to create a safe online environment for kids is universal, China’s approach uniquely reflects its legal system and political values. The 2018 overhaul of China’s Law on the Protection of Minors (LPM) includes an entirely new chapter about protecting minors online to address the key areas of content regulation, protection of personal information, combatting bullying, preventing internet addiction, and countering exploitation. The law again takes a ‘whole of society’ approach, emphasizing the need for increased public education and awareness, as well as government enforcement. In 2020 a special action on governing minors online was launched to more aggressively enforce the new protections for minors, and it appears likely that subsequent campaigns will continue this work.
A. Content Regulation
Childhood is marked, or even defined, by a lack of access to certain “adult” information. Most modern societies strive to shield children from some information that is deemed unsuitable for minors’ emotional and intellectual capacity, such as violence, cursing, sexuality, or even cynicism. As the available sources of information have multiplied, this has become an increasingly difficult task, and now, in the internet age, ‘inappropriate information’ has a way of finding even kids who aren’t actively looking for it.
Deciding what content is appropriate for children is ultimately a subjective determination impacted by cultural trends and personal beliefs. When governments regulate in this area, they take those decisions out of the control of individual families to impose a uniform value judgment. These choices can be revealing as to what values a society seeks to instill in its youngest citizens.
At the same time, in blocking the targeted content from minors, there is also a risk of incidentally limiting adults’ access to some content. This can occur directly, such as where content blocking software installed on public computers affects all users regardless of age, and it can also happen indirectly when creators seek to maximize their audience by avoiding certain subjects that might trigger age restrictions. While the consideration of adults’ rights to access information and decide what information their children may view has been a major consideration in drafting US rules on content restrictions for minors, this has unsurprisingly been less of a concern in China where broader content restrictions are routinely applied to adults.
The Law on the Protection of Minors is written at a high level of abstraction, and does not go into great detail regarding what online content is prohibited. It contains only a broad ban on the creation or spread of information “harmful to minors” in any medium (largely retained from the previous 2005 version of the law) and a new requirement that all information that “might impact minors’ mental and physical health” be clearly labeled.[lx] Neither category is fully defined in the law – a task assigned to administrative agencies for a later date- but listed examples of prohibited content include “advocating obscenity, pornography, violence, cults, superstitions, gambling, inducements to suicide, terrorism, separatism, or extremism.” Public computers available to minors, such as in schools or libraries, are required to install software to block children’s access to such content, and guardians are to take measures to prevent their minor charges’ exposure.[lxi]
A draft Regulation on the Protection of Minors Online, released by China’s State Council in 2017 but never finalized, might provide further insight into what content is prohibited. That draft established categories similar to those in the LPM, but defined them in more detail and in a manner more clearly aimed to be compatible with existing law. Fully prohibited content was identified as information that violates existing legal authority – meaning content that it is illegal for anyone to create or share, not just minors. The category requiring a warning label was called ‘unsuitable for minors’, and further broken into four categories of content that might encourage (1) negative behavior (such as violence, bullying, suicide, self-injury, sexual contact, vagrancy, or begging), (2) substance abuse (including tobacco and alcohol), (3) anti-social attitudes (such as animosity to education, cynicism, self-loathing, or depression), or (4) any other negative impacts on minor’s physical and mental health. Interestingly, a second draft of this document was released in March 2022, abandoning this increased specificity and instead adopting the language of the LPM.
While more detailed than what is provided in the LPM, the breakdown in the earlier draft was still exceedingly broad and so subjective as to guarantee uneven enforcement. Without further clarification, both law enforcement and content providers could be left guessing as to what is permissible. Consider for example the vast range of content that might lead teens towards ‘self-loathing’ or disliking schools. Note also that the Provisions would apply to all content that “might” encourage the undesirable conduct, rather than conduct that was “intended” or “known to” encourage such conduct, creating another level of ambiguity carried forward in the LPM’s category of information that ‘might’ impact minors’ mental and physical health. Despite the lack of clarity, both drafts propose real consequences for failures to label such content as ‘unsuitable for minors’, including fines of up to 300,000 RMB (·$43,000).
A different approach is taken in documents specifically related to content creation, such as the recently updated Provisions on the Administration of Programs for Minors. The draft Online Protection Regulations discussed above had defined unsuitable content solely based on the behaviors they hoped to prevent in minors. The Program Provisions instead provide a detailed list of specific themes and topics that must not be included in audiovisual programs aimed at or featuring minors, and a separate list of encouraged content. This same strategy was used in earlier versions of these Provisions predating the revisions of the LPM. Despite the different approach and increased specificity, the categories are still often broad, subjective, and prone to capricious enforcement. They do however give further insight into what the Chinese government thinks will lead children astray: young romance as well as sex, presentations of suicide, dangerous conduct that might be imitated, or flaunting wealth.
The Program Provisions also require multiple levels of content labeling online. Special areas containing programs suitable for minors should be easily identifiable.[lxii] Within these areas, specific content should be clearly labeled to indicate what age children it is appropriate for. Online platforms must also have mechanisms in place to receive public complaints regarding inappropriate content, and are required to respond by conducting reviews and blocking any content found to be inappropriate. [lxiii]Advertising to children is already strictly limited by the Advertising Law and related regulations, including prohibitions on ads for make-up, health care, tobacco, and other influences deemed ‘unhealthy’, but the Provisions go further, holding that no advertisements of any kind may be displayed during online programs for minors, either while the program is playing or while it is paused. [lxiv]
It is important to remember that these content restrictions for minors exist as part of China’s broader content regulations. China has long censored the internet, and new efforts to “govern the online information content ecosystem” have gone further. In addition to banning content that violates laws, such as threats to national security and calls for separatism, new online content rules further ban “negative content.” Negative content doesn’t break any laws, but is described as harmful to public morals or to the online information ecosystem, and online platforms are required to prevent its transmission. Examples include sexual innuendo, celebrity gossip, making fun of tragedies, or sensationalized headlines. At the same time, the state has actively encouraged the spread of uplifting ‘positive energy’ content, such as tales of heroism and good Samaritans.
Understanding the full range of China’s content controls is critical if one intends to analyze these rules to better understand the perception of children. The Party-state puts itself in a position of parental filtering not just towards minors, but towards all citizens, and it can be difficult to distinguish the different restrictions. For example, in a recent list of 100 banned topics for short video platforms like TikTok, only four specifically relate to minors. In practice, the content restrictions for children and adults often overlap, but there is a more aggressive approach to removing content aimed at minors, and harsher penalties can result.
B. Minors Conduct Online
1. Preventing Exploitation
In addition to restricting accessible content, China has also imposed rules about minor’s appropriate conduct online. Much of this relates specifically to stopping internet addiction or preventing online bullying, as will be discussed below, but there are also increasingly strong provisions aimed at stopping more direct economic and sexual exploitation.
The use of children in any online performances has been one area of heavy regulation. The LPM prohibits minors under the age of 16 from opening their own livestreaming accounts, while older minors may do so only with the consent of their guardians.[lxv] To prevent their exploitation for profit, the amount of time that minors can even appear in videos is also regulated, regardless of whether they are accompanied by an adult.[lxvi] Professional management agencies for online performers must not take on clients under the age of 16, and may only represent older children with the informed consent of their guardians.[lxvii] Beyond prohibitions on pornography, strict action is to be taken against online video creators that show minors in indecent or suggestive poses.[lxviii]
In addition to preventing children from being exploited for profit online, there are also new rules to prevent minors from excessive spending online.[lxix] Online platforms are instructed to limit the amounts of money that minors are able to spend through online services. [lxx]This includes caps on minors’ ‘tipping’ online performers, but also prohibitions on deceptive tactics meant to induce children to tip, such ranking celebrities by the amount of tips collected to start competition among fans, or seeding tip jars to create momentum. The newest draft iteration of the Regulations for the Protection of Minors’ Online further elaborates that youth modes in apps and websites should enforce limits on both minor’s total daily spending and the maximum amount of a single payment.[lxxi]
C. Internet Addiction
China’s battle against minor’s overuse of the internet is at the intersection of content and conduct regulations. Nearly half of the 17 articles in the LPM’s new chapter on the online protection of minors relate to internet addiction. Preventing internet addiction is listed as one of guardians’ primary duties, and they are required to educate themselves and their children on healthy internet use, install protective software, and implement child modes in any software used by minors. [lxxii]Service providers must include functions for limiting minors’ time online, and a host of regulatory agencies are to oversee them and provide public education on internet addiction. Schools are now to teach online literacy, including the prevention of addiction, and students are forbidden from using phones or any other terminal not provided by the school in classrooms. [lxxiii]Where schools discover that students have an internet problem, they are to notify parents, and work with them on an intervention.
Online video games are a special focus in the push against internet addiction. All games must be reviewed and labeled for age appropriateness before they are allowed on the market. [lxxiv]The LPM requires that online games must not be available to minors during the hours of 10 PM to 8 AM, partially incorporating earlier rules which had also limited play time to a maximum of 1.5 hours on school days. [lxxv]Subsequent authority has gone even further and the current rules ban all online gaming by minors except on weekends and holidays, when a single hour of gameplay is allowed between 8:00 P.M. and 9:00 PM.[lxxvi] The burden is on the service providers to block minors at other times.
A positive development in the revised LPM is a clear ban on harmful interventions for internet addiction.[lxxvii] While parents are reportedly supportive of stricter restrictions on gaming and internet use, the earlier use of extreme methods such as electric shock therapy or boot camp style programs by private internet addiction clinics had become a national scandal when at least one participant died. [lxxviii]
D. Identifying minors online
Key to any of these protections is the ability to identify minors online. China implements a real-name registration system for most online services, including games, requiring all accounts to be linked to a valid state identification number. Kids, naturally, have found ways to avoid being identified as minors such as by using guest modes or borrowing adult login information. The government has been stepping up efforts to close these loopholes, and companies are no longer allowed to offer anonymous online gaming through ‘trial’ or ‘guest’ modes. [lxxix]
More recently, the Ministry of Culture and Tourism has encouraged online service providers to use technical measures for identifying children online. In its Opinions on Strengthening the Protection of Minors in the Online Cultural Market, content providers are encouraged to use methods such as analyzing users’ content choices and other online behavior to identify children.[lxxx] Many readers may assume that such surveillance and analysis is commonplace in China, but most laws and regulations mention new technologies only in the vaguest and most aspirational manner. This is a rare example of a call to implement specific pattern analysis technologies to enable social controls. It will also necessarily encompass information on adults as well as children, as it tries to discern the differences in their internet usage.
E. Online Protection of Children’s Personal Information
Over the last several years, China has created a robust system of rules related to the handling of individuals’ personal information, and this has included a special emphasis on the protection of minors. Even before the passage of the landmark Personal Information Protection Law (PIPL) in 2021, China had adopted Provisions on the Protection of Children’s Information Online. Many of the Provisions’ rules were incorporated into the PIPL and applied to all persons, but both documents retain special protections for minors under the age of 14.
The PIPL considers all personal information of minors to be ‘sensitive personal information’ – information that if leaked or improperly used can easily cause injury to dignity, persons, or property. [lxxxi]Such information requires heightened protection, and is only to be collected or used at all when truly necessary. Independent consent is required for the use of any sensitive personal information, and in the case of minors, this means the consent of their guardians.[lxxxii]
In China’s personal information protection system, the collection of personal (identifying) information is generally restricted to the smallest scope necessary to achieve the data processor’s indicated goals. The rules for children under 14 expand this ‘principle of minimum necessity’ to further specify that the scope of staff with access to children’s data should be similarly limited to the smallest possible range.[lxxxiii] Moreover, access to children’s information by service providers’ employees must be specially granted by their corporate information protection officers or managers, the access is to be logged, and technical measures should be in place to stop any improper downloading or reproduction of children’s materials.
Where minors publish private information online themselves, network providers are to take action to protect it.[lxxxiv] The scope of this information is unclear, as most regulations relate to “personal” (identifying) information, rather than “private information”; and this may result in providers excessively removing content to avoid liability. For minor’s personal information that is acquired by online services, the minors and their guardians have the right to request corrections, or even to have it deleted, at any time.
In news reporting, minors’ identities are generally protected both online and off, but special rules exist for negative or prurient online coverage of minors. Stories related to crimes, bullying, or school punishments are to be downplayed, and must never be on a website’s homepage or front page of news sections.[lxxxv] This content must also not be recommended by news sources in any form, including by microblog (tweet), search functions, advertising etc., and sites must not contain special features or compilations of such reporting. While the scope of these rules is not clearly defined, the rules’ stated purpose of protecting minor’s from psychological harm suggests that they apply to stories where minors are either the perpetrators or the victims of crimes or mistreatment. The goal of preventing further injury to minors is admirable, but it’s hard not to see an ulterior aim in burying stories that could be interpreted as failures to protect children, which have often led to online outrage.
Finally, the LPM provides protects minors’ privacy in their online communications. Without their permission, their emails and other electronic communication must not be destroyed or concealed by any entity or person.[lxxxvi] They must not be opened without their consent except by law enforcement pursuing a case, to prevent physical harm in emergencies, or where guardians of children below the age of civil capacity open correspondence on their behalf.
- Online Bullying
The LPM also prohibits online abuse of minors including insults, defamation, threats, or malicious attacks in any form.[lxxxvii] The Ministry of Education has interpreted this to include students’ transmission of false information or rumors that belittles other students, or the disclosure of other people’s private personal information.[lxxxviii] Minors and their guardians have the right to report such bullying to network service providers, and request that related information be deleted or blocked. The service providers have an obligation to stop reported bullying and to reduce the negative impact. As part of the special action to protect minors online in 2020, police and internet regulators were instructed investigate reports of cyberbullying and to close implicated online chat groups or social media accounts. [lxxxix]
VI. Student Bullying
Beyond online bullying, preventing the physical and psychological harm to students that can result from all forms of bullying has also become a priority of recent reforms. In 2016, school bullying was the subject of a special corrective action initiated by the education authorities in the State Council. This was quickly followed by the joint release of a guiding opinion on bullying and school violence by 9 ministries,[xc] and then an action plan for stopping bullying released by 11 ministries.[xci] The 2020 revisions of the LPM mark the first time that bullying has been mentioned in a national law.
Bullying is defined in the law to include physical, verbal, or online attacks between students that cause harm to persons, property, or mental health.[xcii] Subsequent provisions on implementing the protection of minors in schools have added to this definition, saying that bullying can include: (1) physical attacks or threats, (2) insults to dignity such as through mocking or name calling, (3) taking or intentional destruction of property, (4) malicious exclusion or isolation of other students, and (5) online bullying. These acts will be considered bullying where they either cause harm, or where they are carried out by those with an advantage over the bullied party in terms of size, number, age, and so forth. [xciii]
Schools have the primary responsibility for coordinating responses to bullying. This begins with an obligation to prevent bullying by providing relevant education and training for teachers and students. [xciv] For teachers, this centers on learning to recognize bullying and actively engaging students who show symptoms. It also includes identifying students who might have disadvantages making them particularly vulnerable to bullying, including disabilities or other special statuses.[xcv] Anti-bullying education for students is to focus on increasing their willingness to speak out and report incidents. Additionally, schools are to conduct periodic surveys about bullying on their campuses to remain aware of changing conditions. [xcvi]
Where acts that may qualify as bullying are detected, schools are required to stop them, notify the guardians of both the bullies and their victims, and provide ‘family education’ guidance for the families involved.[xcvii] To accomplish this, they are to form internal organizations on bullying, composed of school authorities, legal advisors, experts, parents, and students, which are responsible for deciding whether bullying has occurred and formulating a response.[xcviii] When a report of bullying is made, it is to be immediately investigated by the school, and where it appears to be substantiated, it is then to be sent to the bullying organization for an official determination.[xcix] The students involved, and their guardians, are to participate in this process. If the incident suggests a crime or legal violation, the school is required to report the incident to the police, but the primary enforcement mechanism is with the school, and where a determination of bullying is made, the school is to discipline the bullies, and may admonish their parents as well.
The LPM also requires that the minors affected by bullying should be provided with psychological counseling.[c] The school protection provisions do not elaborate on this, but do generally emphasize the importance of counseling and care for students in emotional or physical distress. They also allow that where bullying has made it impossible for the student to continue studying in a certain class, schools are to honor guardians’ requests that they be put in another class.[ci]
VII. Prevention of Delinquency
Having considered the protection, care, and education of minors, the final aspect of the recent wave of reforms involves interventions where minors are viewed as a threat to themselves or the public. In 1999, China first passed its Law on the Prevention of Juvenile Delinquency (Delinquency Law), making prevention the cornerstone of juvenile justice. The Delinquency Law sets out the obligations of all concerned parties, including guardians, schools, law enforcement and relevant government agencies in preventing juvenile misconduct and increasing discipline. As part of the comprehensive overhaul of China’s legal system relating to minors, the Delinquency Law dovetails with provisions of the LPM and Family Education Law, as well as with provisions of the Criminal Law to introduce a graded system of interventions for minors’ misconduct.
A. The Criminal Law
China does not have a discrete criminal justice system for minors, but has developed an increasingly robust set of protections for defendant minors over the last 15 years. The guiding principle for juvenile crime cases is that education is to be the priority, with punishment as a secondary concern. To help implement this principle, all courts, prosecutors’ offices, and police forces have been encouraged to dedicate special divisions or personnel for juvenile cases, who are more familiar with the psychological needs of minors, and the new LPM now makes this mandatory.[cii] Being a minor at the time of the offense is also a mitigating factor in criminal sentencing, and the death penalty was abolished for those under 18 at the time of the crime in 1997. [ciii]
In 2012, amendments to the Criminal Procedure Law further allowed that unlike the majority of criminal defendants, minors are always entitled to free legal aid defense representation and must have their guardian or an appointed ‘appropriate adult’ present with them during interrogations.[civ] To protect their privacy, their trials may be closed to the public at their request, and their criminal records can be sealed to allow them a fresh start when reentering society after their sentence is completed. [cv]
1. Age of responsibility
At the end of 2020, China amended its Criminal Law to lower the age at which minors can be held accountable for their crimes.[cvi] Prior to the revision, minors under the age of 14 were not held criminally accountable for any offenses, and those under 16 could only be held responsible for extremely serious offenses such as homicide, assault causing serious injury, robbery, rape, arson, or major drug trafficking. Even where minors under the age of responsibility committed serious crimes, they were often simply released to their parents. Following the amendment, children as young as 12 may now be held criminally liable for crimes that result in death, or in serious injury if the methods were particularly shocking, although their prosecution requires the approval of the nation’s highest prosecution authority.
Lowering the age of criminal responsibility, even in this limited fashion, raises a number of concerns. First, it is contrary to international law norms, which hold that the age of criminal responsibility should be at least 14.[cvii] As a major power, China’s example in lowering the age may be followed by other nations, shifting these norms.
Second, the proposal confuses the severity of the offense with the culpability of the child. Generally speaking, the requirement of leniency for child offenders stems from the recognition that they are less responsible for their actions and have a greater chance of reform. They are still developing neurologically and are less able to understand and control their conduct. This same malleability also gives hope that they can truly reform. The severe consequences of crimes like murder or rape might seem ‘adult’ or un-childlike in some sense, but this doesn’t really impact the immaturity and subjective blameworthiness of the child. On the contrary, it may reflect the child’s inability to understand how serious their actions are. The seriousness of the offense is probably more closely linked with the extent of public outrage than to the offenders’ culpability. It’s natural that anger creates a desire for a strong response, but while some may endorse retribution against adults, feeling so eager to seek revenge against 12-year-old children as to amend the Criminal Law and upend long longstanding practice should give anyone pause.
Finally, requiring approval of the Supreme People’s Procuratorate for prosecutions of the nation’s youngest offenders invites the perception of capricious enforcement. Requiring this highest level of approval was clearly intended to be an additional safeguard for the accused, but, without clear standards for how the decision to extend liability is to be made, individualized case determinations may appear arbitrary or entirely responsive to public opinion, rather than rule-based.
B. Responses outside the Criminal Justice System
Even as China lowered its age of criminal responsibility, the majority of its juvenile justice reforms seemed aimed at ensuring that minors stayed clear of the criminal justice system. The Delinquency Law emphasizes early intervention in misconduct before it reaches a criminal level, and creates of tiered system of responses to address negative and serious negative misconduct.
“Negative conduct”, in the law, is behavior that is harmful to the minors themselves rather than to society. Enumerated examples are closely related to the types of conduct that minors’ guardians are required to prevent under the Law on the Protection of Minors, such as drinking or smoking, repeatedly skipping school, watching pornography, gambling, and of course – internet addiction.[cviii] The authorized responses are also familiar from the LPM, with families and schools taking the primary responsibility for stopping negative conduct through education and discipline, and police or local resident/villager committees providing oversight by urging guardians to perform their duties.[cix]
“Serious negative conduct” is conduct that is either a public security violation or that would be criminal if the minor was above the age of criminal responsibility.[cx] In China, many light offenses, including personal drug use and minor violence, are considered public security violations rather than crimes, and can be punished by fines and up to fifteen days detention directly by police and outside the courts and criminal justice system. The age of responsibility for public security offenses was the same as that for criminal offenses prior to the 2020 revisions of the Criminal Law, but the Delinquency Law now appears to place minors fully outside of the public security administration system, replacing it with a 3-tiered system for addressing all “serious misconduct”.
The lowest level intervention for serious misconduct is community-based rehabilitation, which emphasizes allowing minors to remain with their families and social support networks while working to help change their negative trajectory. The Delinquency Law describes a number of specific measures that police may be use either independently or in concert to address minors at this level, based on the nature of their offense.[cxi] First, they may simply be given warnings and ordered to change their behavior. If there were specific victims of the misconduct, the minors may be ordered to make a formal apology and provide compensation for damages they caused; a restorative strategy useful in making them confront the consequences of their actions. In a similar vein, they may be asked to make a written statement reflecting on what they have done and committing to reform in the future.
In more serious situations, the police may require minors to report on their own activities. China does not have a probation officer system, but the concept here is familiar, with minors being required to periodically notify police in writing of their routines and attest to their continued compliance with the law. Police may also impose specific behavioral prohibitions, such as forbidding minors from contact with certain people, places, or activities, to help them avoid known negative influences or break negative behavior patterns. Minors may be required to participate in psychological counseling to help resolve underlying problems and give them support in their reformation, or required to perform volunteer service activities to introduce them to a new community and give back to society. Where closer supervision is needed, a relevant social organization may conduct targeted education and oversight of them.
The system of community-based measures remains vague, and there are many questions about how they will implemented, particularly in rural areas with fewer social resources to provide services. As police have largely unchecked discretion in deciding to implement these measures, there is also potential for abuse. They do, however, reflect the positive trend of the law, which is to replace punishment with education for minors, to seek reform rather than retribution, and to provide individualized treatment in recognition minors’ differing situations and needs. Taking low level offenses entirely out of the public security administration system, and addressing them instead as negative conduct that elicits concern, is a major step down the right path, but it is only the first step.
C. Specialized Schools
For serious conduct that cannot be addressed solely in the community, the Delinquency Law has created two levels of corrections in ‘specialized schools’. These schools, formerly known as ‘work-study’ schools were first established in the 1950s, following a Soviet model, and were used as a dumping place for a wide variety of problematic children. In addition to the mandated government curriculum taught at regular schools, students received additional coursework aimed at correcting their misbehavior, sometimes including labor assignments. The first Delinquency Law in 1999, however, provided that minors could only be sent to the work-study schools upon the application of their guardians or schools, which resulted in a sharp decrease in enrollment. Despite efforts to reduce the stigma attached to these schools, including rebranding them as ‘specialized schools’ in the 2006 revisions of the LPM, they continued to be viewed by many as centers for punishment rather than learning and reform.
In their newest form, students may still be enrolled in specialized schools upon an application from their parents or schools, but may also be compelled to enroll by the police and education departments.[cxii] Guardians and schools may apply for transfer to a specialized school only where they are unable to effectively discipline a minor with serious misconduct. All applications must go through a two-stage approval process, first being reviewed by a newly instituted Specialized Education Committee which will decide whether to send the case to the education authorities for a final decision. Students may be compelled to transfer to specialized schools where they have perpetrated multiple acts of serious misconduct that seriously endangered society, where the consequences of their conduct were severe, or where they have already failed to comply with the requirements of community-based treatment. Recommendations for compulsory specialized education must also be reviewed the Specialized Education Committee before being sent for a final decision that will be made jointly by the police and education departments.
To combat the stigma of specialized education from impacting minors’ self-perception and future prospects, they are to be returned to their original schools as quickly as possible. Even when they are unable to return, their diploma is to be issued from their original school, not the specialized school itself.[cxiii]
D. Custodial Education
A final level of intervention, specialized correctional education, requires minors to be placed in a secure custodial facility at designated specialized schools, apart from other students. This custodial measure replaces a form of administrative punishment known as ‘custody and instruction（收容教养）. In fact, the single mention of custody and instruction in the Criminal Law, saying that it may be implemented ‘when necessary’ for minors who had committed crimes but were below the age of responsibility, was explicitly changed to ‘specialized corrective education’ in 2020 amendments, paving the way for reforms to the Delinquency Law. [cxiv]
Regrettably, the strongest criticism of the Custody and Instruction system, that it amounted to a form of imprisonment with no judicial oversight, has not been resolved. Other mechanisms for long-term administrative detention such as the notorious re-education through labor system (劳动教育), and the less well-known custody and education system for sex offenders 收容教育, have been abolished in recent years, and it was hoped that all such punishments would follow suit. Unlike custody and education, which was implemented by the police alone, specialized correctional education does now require a review by the specialized education committee and a final decision made jointly by police and education departments, but the police are well positioned to retain control of the decision-making.
The Specialized Education Committee is designed to play a gatekeeper role for the use of specialized education, stopping abuse and also providing professional insight into what is best for the minors. The membership of the committee is to be drawn from a variety of government offices including courts, prosecutors’ offices, police, education departments, human resources and social security departments, specialized schools and others, as well as those with special skills and interests related to minors such as lawyers, social workers, members of organizations for the protection of minors.[cxv] Whether the group will be able to provide a meaningful check on even police recommendations to compel specialized education or impose custodial education remains to be seen, but at the very least the two-stage review process will create a better record of the process.
The synchronized revision and release of these three major laws on the rights and interests of minors has been a massive endeavor, but it is only the beginning. In addition the laws on teachers and education have been revised and a wave of regulatory authority has been released, amounting to nothing less than the creation of an entirely new field of law in China. Despite some of the problems and challenges identified in the new systems, there can be little question that these are serious efforts to which an enormous amount of resources have been devoted.
To the extent that there is a unifying theme in the laws, it is to make child-rearing a state affair, rather than merely the concern of individual families. Through these laws, the Chinese government has codified a conception of how the next generation should be raised, including how they should be disciplined, and what content they should consume. More importantly, they have established mechanisms for ‘correcting’ the parenting of guardians who are viewed as improperly educating minors, to ensure that these rules are properly implemented. Where children are viewed as at risk, they can be placed with other guardians or taken into state custody.
Most of the rules appear driven by the best of intentions: protecting the best interests of minors. The state though has placed itself as the arbiter of what those ‘best interests’ are. Sometimes, this is spectacularly specific, regulating minutiae such as the specific hours minors may play online games. At other times, it is frustratingly vague, such as requiring guardians to ensure that minors avoid contact with ‘extremist thought’, something we have already seen expanded in Xinjiang to include beard growth, and keeping halal. China’s would hardly be the first nation to have a state imposed conception of children’s best interests lead it down a path that is later viewed as harmful those minors, but there is little question that they are pursuing a treacherous course in which the state has begun to legislate childhood, parenthood, and family values.
[i] 关于进一步减轻义务教育阶段学生作业负担和校外培训负担的意见 Opinions on Further Reducing the Burden on Students in the Compulsory Education State from Homework and Extracurricular Training (2021)
[ii] 关于进一步严格管理切实防止未成年人沉迷网络游戏的通知 Notice of Further Strict Management to Effectively Prevent Minors from Addiction to Online Games (2021)
[iii] 家庭教育促进法 Family Education Promotion Law (2021)
[iv] FEL 2
[v] FEL 16
[vi] FEL 3
[vii] 于进一步加强文艺节目及其人员管理的通知, Notice on Further Strengthening the Management of Cultural Programs and their Staff (2021)
[viii] See notes 1 and 2 supra.
[ix] FEL 17
[x] FEL 17
[xi] FEL 17(1)
[xii] FEL 20
[xiv] FEL 17(2)
[xv] FEL Article 35
[xvi] FEL Article 25
[xvii] FEL Chapter III
[xviii] FEL 38-43
[xix] FEL 46
[xx] FEL 7
[xxi] FEL 43
[xxii] FEL 49
[xxiii] 中华人民共和国未成年人保护法 , Law of the P.R.C. on the Protection of Minors (2020)
[xxiv] LPM 7
[xxv] LPM 8
[xxvi] LPM 22, 23
[xxvii] LPM 43
[xxviii] 两高两部的依法处理监护人侵害未成年人权益行为的意见, Opinion on Violation of Minors’ Rights by their Guardian (2014)
[xxix] Id. At 11.
[xxx] LPM 92, 93
[xxxi] At 15.
[xxxii] Opinions at 24, see also 关于加强人身安全保护令制度贯彻实施的意见, Opinions on Strengthening the Implementation of the Personal Safety Protection Order System (2022)
[xxxiii] 中华人民共和国民法典, Civil Code of the P.R.C. article 36 (2020)
[xxxv] Civil Code 38
[xxxvii] 关于依法惩治性侵害未成年人犯罪的意见, Opinions on Punishing Sexual Abuse of Minors (2013)
[xxxviii] Id. At 9
[xxxix] Id. At 10
[xl] 反家庭暴力法, Domestic Violence Law (2015), article 2
[xli] ID. 14
[xlii] 关于建立侵害未成年人案件强制报告制度的意见（试行）, Opinions on Establishing a Mandatory Reporting System for Cases of Violations Against Juveniles (Provisional) (2020) ， article 2.
[xliii] Id. article 2
[xliv] Id. Article 4.
[xlv] LPM 11
[xlvi] LPM 20
[xlvii] LPM 37, 39, 40
[xlviii] LPM 80
[xlix] LPM 57.
[l] LPM 52
[li] 中华人民共和国刑法修正案（九）, People’s Republic of China Criminal Law Amendment (9), item 12, modifying Criminal Law article 237.
[lii] Id. Item 43, modifying Criminal Law article 360.
[liii] 中华人民共和国刑法修正案（十一）Criminal Law Amendment 11 (2020), item 27, modifying Criminal Law article 236-1.
[liv] The case was ultimately revealed to be even more complicated, as the woman involved was ultimately revealed to have lied about her age, and was not in fact a minor- but the impact on public opinion remained. See e.g. https://supchina.com/2020/09/17/a-messy-sexual-assault-case-in-china-is-over-bao-yuming/
[lv] Id. At item 26.
[lvi] LPM 62
[lvii] 关于建立教职员工准入查询性侵违法犯罪信息制度的意见, Opinions on Establishing a System for Making Inquiries into Information on Sexual Offenses by Entering Teachers and Staff (2020)
[lviii] Id. Article 4
[lix] 未成年人学校保护规定, Provisions on Schools’ Protection of Minors (2021) articles 24, 60.
[lx] LPM 50.
[lxi] LPM 69, 72
[lxii] 未成年人节目管理规定 （2021年）,Provisions on the Administration of Programs for Minors (2021), article 19
[lxiii] Id. Article 25.
[lxiv] Id. Article 18.
[lxv] LPM 76.
[lxvi] 文化和旅游部办公厅关于加强网络文化市场未成年人保护工作的意见, Opinions of the General Office of the Ministry of Culture and Tourism on Strengthening the Protection of Minors in the Online Cultural Market (2021), article 7.
[lxvii] 网络表演经纪机构管理办法, Measures on the Administration of Online Performance Management Establishments (2021) article 7.
[lxviii] 文化和旅游部办公厅关于加强网络文化市场未成年人保护工作的意见, Opinions of the General Office of the Ministry of Culture and Tourism on Strengthening the Protection of Minors in the Online Cultural Market (2021), article 6.
[lxix] LPM 74
[lxx] Id. Article 8.
[lxxi] 未成年人网络保护条例（征求意见稿）, Regulations on the Protection of Minors Online (Draft for Solicitation of Comments) (2022) article 51.
[lxxii] LPM 71.
[lxxiii] LPM 64， 70
[lxxiv] LPM 74
[lxxv] 关于防止未成年人沉迷网络游戏的通知，Notice on Preventing Minor’s Addiction to Online Games （2019）at II.
[lxxvi] 关于进一步严格管理切实防止未成年人沉迷网络游戏的通知, Notice of Further Strict Management to Effectively Prevent Minors from Addiction to Online Games (2021) at I.
[lxxvii] LPM 68.
[lxxviii]Teen’s death at Chinese internet addiction camp sparks anger https://www.bbc.com/news/world-asia-china-40920488
[lxxix] LPM 69. 71, 74; 关于进一步严格管理切实防止未成年人沉迷网络游戏的通知, Notice of Further Strict Management to Effectively Prevent Minors from Addiction to Online Games (2021) at II.
[lxxx] 文化和旅游部办公厅关于加强网络文化市场未成年人保护工作的意见, Opinions of the General Office of the Ministry of Culture and Tourism on Strengthening the Protection of Minors in the Online Cultural Market (2021) at 4.
[lxxxi] 个人信息保护法, Personal Information Protection Law (2021) article 4.
[lxxxii] Id. Article 31
[lxxxiii] 儿童个人信息网络保护规定, Provisions on the Protection of Children’s Personal Information Online (2019) article 15; accord Regulations on the Protection of Minors Online (Draft for Solicitation of Comments) article 42.
[lxxxiv] LPM 72
[lxxxv] LPM 49, and 网上未成年人犯罪和欺凌事件报道管理, Management of Online Reporting on Juvenile Crime and Bullying Incidents (2015)
[lxxxvi] LPM 63.
[lxxxvii] LPM 77.
[lxxxviii] Provisions on Schools’ Protection of Minors, article 21
[lxxxix] Notice on Jointly Launching a Special Governance Action on the Online Environment for Minors at (3)
[xc] 关于防治中小学生欺凌和暴力的指导意见, Guiding Opinions on Preventing Bullying and Violence of Primary and Secondary School Students (2016)
[xci] 加强中小学生欺凌综合治理方案, Comprehensive Plan for Strengthening Governance of Primary and Secondary School Students (2017).
[xcii] LPM 130(3).
[xciii] 未成年人学校保护规定, Provisions on Schools’ Protection of Minors (2021), article 21.
[xciv] LPM 39.
[xcv] School Protection of Minors, supra note 93, article 22.
[xcvii] LPM 39.
[xcviii] School Protection of Minors, supra note 93, article 19.
[xcix] Id. At article 23.
[c] LPM 39.
[ci] Article 49
[cii] LPM 101.
[ciii] 刑法（2021年版）, Criminal Law (2021 Ed.) Articles 17, 49
[civ] 刑事诉讼法 （2018年）Criminal Procedure Law (2018), articles 278, 281.
[cv] Id. 286.
[cvi] 中华人民共和国刑法修正案（十一）, Criminal Law Amendment !!, (2020) , item I.
[cvii] UN Committee on the Rights of the Child (CRC) General comment No. 24. (2019) on children’s rights in the child justice system
[cviii] 预防未成年人犯罪法（2021年版）Juvenile Delinquency Prevention Law (2021) [DL] article 28.
[cix] Id. Articles 29, 30.
[cx] Id. Article 38.
[cxi] Id. Article 41.
[cxii] LPD 43-46.
[cxiii] LPD 47.
[cxiv] Criminal Law Amendment 11 (2021) , item 1
[cxv] LPD 6.
[…] The overhaul of the Minors Protection Law [未成年人保护法] in 2020 initiated an ongoing “revolution in [China’s] legal framework relating to children.” The revised Law […]