Difficulty and resolution of laws on minors: a discussion of the amendment to Law on the Protection of Minors and Law on the Prevention of Juvenile Delinquency

YAO Jianlong1

(1.Shanghai University of Political Science and Law)

【Abstract】In response to the drawbacks with the law on minors, three major problems, the dilution of responsibility for the protection of minors, the lack of protective and disciplinary measures dealing with juvenile delinquents and the deficiencies in the state guardianship system targeting at children in difficulty, are screaming for solutions. A practical and feasible remedy for these problems is that the lawmakers try not to alter or break the present basic framework of the law system designed for minors, and by amending existing laws tackle the heart of the matter which is in dire need of legislative solutions . The amendment to the Law on the Protection of Minors should be ideally geared towards the welfare legislation, emphasis laid on children in difficulty and minors’ right to being protected; meanwhile, the Law on the Prevention of Juvenile Delinquency should be ideally transformed into legislation that embraces properties of juvenile justice, so as to establish an independent system designed for juvenile justice. Simultaneously some other laws concerned should also be revised in order to establish an independent branch of law, and laws on minors are established as an independent legal department with a view to altering the status where laws on minors are subordinate to laws on adults, and where the sentence imposed on a minor, as the case may be, is always mitigated.

【Keywords】 Law on the Protection of Minors; Law on the Prevention of Juvenile Delinquency; child welfare; juvenile justice;

【DOI】

【Funds】 the theoretical research program focused on national rule of law and legal theory (18SFB2019)

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    Footnote

    [1]. (1) 2017, The CPC Central Committee and the State Council Print and Issue The Plan for Long- and Medium-Term Youth Development (2016-2025), April 14 (http: //politics. people.com.cn/n1/2017/0414/c1001-29209632.html). [^Back]

    [2]. (2) 2018, Legislative Plan of the Standing Committee of the 13th National People’s Congress, September 10 (http://www.npc.gov.cn/npc/xinwen/2018-09/10/content_2061041.html). [^Back]

    [3]. (3) Though the term “juvenile” was referred to in this local ordinance, it was actually defined in its articles as citizens younger than 18 years old shall be deemed as juvenile, which share the same age bracket with the term “minor.” [^Back]

    [4]. (4) This local ordinance incorporates the feature of welfare law with that of juvenile law (a judicial law). The basic procedures of handling cases involving minors were expressly specified in Chapter 8 “Education, Rectification, and Placement of Juvenile Delinquent.” With its authority limited, this local ordinance failed to reflect the character of modern juvenile law—education in replacement of penalty. [^Back]

    [5]. (5) Pursuant to the Law on the Protection of Minors, minors refer to citizens younger than the age of 18. [^Back]

    [6]. (6) The term “juvenile,” which gives no clear age range, is widely used in political science and sociology. The upper limit on age range of juvenile varies from 18, 20, 25, 35, 40, to 45. Hence in the field of law, the term “juvenile” is, as suggested, to be replaced with “minor.” However, the term “juvenile delinquency” is still in use in criminology. A common ground has reached on setting the age of 25 as upper limit of the age bracket applicable to juvenile delinquency. [^Back]

    [7]. (7) Juvenile law refers to the law specially formulated to deal with juvenile delinquency. It regulates and guides public security organs, judicial organs and other government organs to handle cases related to juvenile delinquency, representing the character of a judicial law. As generally provided in the law in force in China, a juvenile is a citizen who is younger than 18 but not less than 14 years old. But for the purpose of prevention, juvenile law is also applicable to minors at the age of 12 or even younger, to whom the state could officially apply intervention measures. In general, the term “juvenile” referred to in juvenile law and the term “minors” specified in Law on the Protection of Minors are almost equivalent in light of their meanings. The term “juvenile” is prone to be referred to as minors capable of behaviors in jeopardy of society, hence the frequent use in the academic circle to distinguish it from the term “minor.” So, it is safe to conclude that juvenile law is encompassed in law on minors, which is also a hyponym of law on minors. [^Back]

    [8]. (8) Notably, the original legislative goal which was adopted by the Communist Youth League for the legislation of Law on the Protection of Minors is to formulate a juvenile protection law which is also applicable to some of the adults (youth). But it ended up being abandoned for lack of universally-acknowledged definition on age range of youth. [^Back]

    [9]. (9) Editorial Office of Law Year Book of China, 1991-2017, Law Year Book of China (1990-2016), Beijing: Agency of Law Year Book of China. Part of the missing data is replaced with data from other sources. Reader may contact with the author for the complete and original data. [^Back]

    [10]. (10) A mental effect magnifies a certain social phenomenon when the focus of the public is highly concentrated on it. [^Back]

    [11]. (11) Data was collected from the address on The second China-German Criminal Law Forum by Professor Lin Wei from China Youth University of Political Studies. [^Back]

    [12]. (12) Applicable laws have provided, for those minors involved in the commission of seriously adverse acts, certain measures of reformatory education (special education), giving shelter and rehabilitation by the government, ordering the guardian to subject the kids to discipline. But most of these measures are not functioning. [^Back]

    [13]. (13) UNICEF Convention on the Rights of the Child specifies that anyone under the age of 18 shall be deemed a child, which shares the same definition with a minor as prescribed in the Law on the Protection of Minors. Both child and minor are used in contemporary China. Generally, child occurs more frequently in sociology and the field of civil welfare, while minor is mostly referred to in statutes and law studies. Unless otherwise specified, this paper uses the terms “child” and “minor” interchangeably. Still, the author follows the convention on the use of the two terms under various textual registers and contexts. [^Back]

    [14]. (14) For instance, pilot efforts for social protection and protection of children in difficulty have been mentioned in the Report on the Work of the Government of the State Council for several consecutive years. [^Back]

    [15]. (15) The most prominent characteristic of modern children welfare is that the state intervene in every stage of a child’s development from their birth to the coming of age and offer supports in terms of living, education, healthcare, housing and so forth (Yao, 2015: 2). Though a universally beneficial children welfare is not a choice for the legislation in China, a moderate one of that, especially the one providing legal safeguards to children in difficulty, should be the responsibility of the present law on minors. [^Back]

    [16]. (16) It is also called children welfare law while the author suggests that the term “minors’ welfare law” is more appropriate, considering the consistency of legal language. Because the term “children,” which is commonly used in braches of welfare and academic research, and the term “minors,” which is usually referred to in law practice and law study, is the same on definition. [^Back]

    [17]. (17) Some people hold that the Law on the Protection of Minors is the major law that ensures the rights and interest of children. If the children’s welfare law will be enacted, then it shall focus on the objects that are different from those of the former law. The Law on the Protection of Minors is quite comprehensive and abstract while the children’s welfare law should be practical. That means the latter should lay emphasis on detailed rights and interest of all the children, especially the homeless children, children with disability, orphans and children in difficulty, providing them with support, medical treatment and care. Definite functions and responsibility of children’s welfare organizations and government department concerned should be made clear. Regulations on the way social organizations are engaged in children’s welfare should be specified. Notably, under the context of insufficient legislative resources, why does the government not amend the law on the protection of minors as a way of consolidating its characteristic as welfare law to realize the goal of legislation on children welfare? Why does the government keep the law on the protection of minors comprehensive and abstract and seek to legislate a new law on children’s welfare? From a perspective of technique and feasibility where legislation is concerned, it is not the time that legislation on children’s welfare law should be conducted given the present conditions and concepts. For example, Zhou Ming, the vice minister of the Ministry of Civil Affairs, asserted in public that, it is not the right time to draft children’s welfare law before it is ready. The Ministry of Civil Affairs has planned to take several steps to formulate a children’s welfare law—firstly a policy of welfare guarantee for children in difficulty, then the enactment of children’s welfare provisions, and finally the legislation on children’s welfare law after the provisions having been implemented for a certain period of time (Yin, 2015). [^Back]

    [18]. (18) Some may call it juvenile judicial law or minors’ judicial law. Though the terms are different, their implications are exactly the same—this law is one that combines the nature of a substantive law, procedural law and organic law, which bears resemblance to the law on processing juvenile cases in China’s Taiwan, the juvenile law in Japan and the juvenile court law in Germany. It is a law, which deals with juvenile delinquency, independent of the normal public security administration punishments law, criminal law, criminal procedures law. [^Back]

    [19]. (19) Considering the techniques and feasibility where legislation is concerned, the content of juvenile law could also be prescribed under the framework of recidivism prevention of the prevention law. [^Back]

    [20]. (20) In the discussion on revising the law on the protection of minors, there are not only voices calling for strengthening feasibility and improving the question-targeted concept, there are also proposals for incorporating all of the issues related to minor protection into this law for the purpose of transforming it into a pure children welfare law. [^Back]

    [21]. (21) Report of the United Nations Independent Expert on Violence against Children, on August 29th, 2006 (http://www.un.org/chinese/ga/61/docs/a61_299/intro.html). [^Back]

    [22]. (22) The present Child Welfare Law (enacted in 1947) in Japan is the revised version of the Child Protection Act. Child Protection Act and Child Support Act aim at protecting the rights and interest of parturient, widow, infant, orphan, dropout child, impoverished child, problem child, homeless child, child with disability or hypophrenia and other children in difficulty. In 1997, the Japanese government radically revised its Child Welfare Law based on a goal of transcending the concept of protection and support and poverty alleviation (Zhou, 2010). [^Back]

    [23]. (23) A commonplace phenomenon is that the childhood has been prolonged under the social development, and condition that the age limit of minors is relatively narrow. Considering these phenomena and conditions, the author proposes that approaches to the protection of minors should be diversified and flexible, with the upper limit of the objects in need of protection should be properly raised. A new regulation should be amended into the law that the competent government organs shall be committed to expanding the application scope of the rules on the protection of minors prescribed in this law and applying the rule to youth below age of 22. Currently, the law on the protection of minors is only applicable to the minors below the age of 18. However, from the perspective of physiology, young youths below the age of 22 are not completely socialized, and thus they should be regarded as disadvantaged groups. Besides, the international convention also requires the States Parties to make their law on the protection of minors applicable to young youth. [^Back]

    [24]. (24) At present, the state government has not set up a national minor protection committee. The National Working Committee on Children and Women under State Council has undertaken the responsibility to coordinate relevant departments accountable for protection of minors to fulfill their responsibility vested with them. Local government at provincial and municipal levels has by and large formulated local rules and regulations for the protection of minors and established governmental committee tasked with the protection of minors. Nevertheless, there are three different modes in which the committee is subordinated to different superior departments. First, its office is subordinate to the Communist Youth League at most of the provincial and municipal governments. Second, its office is subordinate to the civil affairs department of government, such as in Nanjing. Third, its office is subordinate to the Education Department of government, such as in Shanghai. Considering that the welfare-law-like characteristic is requisite to the law on the protection of minors, the author is of the opinion that the mode in Nanjing is more reasonable. [^Back]

    [25]. (25) Professor Zhen Gongcheng gave an incisive comment on this traditional concept. As he perceived, Chinese traditional culture stresses the familial responsibility to raise and protect their child. Family will always be a trustful and stable entity on which Chinese people could rely. For all the economic development and social changes, Chinese people usually turn to family members for help at the first opportunity and then seek assistance, if necessary, from relatives, acquaintances or even the society, when they run into a problem. For this reason, despite the compulsory education and some welfare, children’s welfare provided by the state, so far, has been only accessible to children with disability, homeless children, children infected with HIV and other children deprived of family protection (Yao, 2015). [^Back]

    [26]. (26) The responsibility of state guardianship includes guarding by supervision on ineffective parental guardianship, guarding by relief of guardianship in difficulty, guarding by guardianship take-over where no guardianship is available, and guarding by disqualifying guardianship under which infringement is committed. [^Back]

    [27]. (27) Due to the confusion in the legislation of the upper law, some governments at provincial and municipal levels have correspondently issued some local ordinances which combines protection law with prevention law. For instance, the new amendment to Regulations on Protection of Minors adopted by Shanghai Municipality has applied such a thinking. [^Back]

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This Article

ISSN:1008-1437

CN: 11-3280/C

Vol , No. 01, Pages 1-15+94

January 2019

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Article Outline

Abstract

  • 1 Origin of laws on minors and development predicament
  • 2 Protection of children in difficulty: pressing task of legislation on minors and challenges
  • 3 Ideal and reality: reasonable solution to the amendment to law on minors
  • 4 Conclusion
  • Footnote

    References