On December 26, 2020, the Amendment (11) to the Criminal Law of the People’s Republic of China (the Amendment) was enacted at the 24th Session of the Standing Committee of the 13th National People’s Congress, and it came into force on March 1, 2021. The biggest change in the Amendment is the reduction of the age of criminal responsibility.

There were two visions of Criminal Law in history. One was enacted in 1979, and the other was enacted in 1997, which is the current Criminal Law.

After the enactment of Criminal Law (1997), it was amended 11 times, but the provisions in relation to the age of criminal responsibility have not changed a lot.  In fact, when the Amendment was drafted, the amendment of the age of criminal responsibility was not considered. Even when the first draft of the Amendment was published, there was no content about the amendment of the age of criminal responsibility. However, in the second draft of the Amendment, the reduction of the age criminal responsibility was added, and it is eventually included in the Amendment. The amendment of the age of criminal responsibility has aroused intense discussion in the whole society.

The age of criminal responsibility has always been 14 years old since the enactment of Criminal Law (1979), To be specific, the age of criminal responsibility for most crimes has always been provided as 16 years old. People who have reached the age of 14 but less than 16 years old only bear criminal responsibility for several types of crimes that are particularly harmful to society. In addition, Criminal Law (1997) is more precise than Criminal Law (1979) in respect to age. For example, in Criminal Law (1997), age is defined as “Zhou Sui” (the common way to calculate age). Given that there are many ways to calculate the age in our country like “Xu Sui” (Chinese traditional way to calculate the age), this change unified the age calculation method and made the expression of the age of criminal responsibility in Criminal Law more scientific and accurate.

Crimes that seriously disrupt public order

Article 14 of the Crime Law (1979) provided that, “where a person who has attained the age of 14 but under the age of 16 commits a crime of homicide, infliction of serious bodily harm, robbery, arson, hardened thief or other behaviours which seriously disrupt public order…”

Article 17 of the Crime Law (1997) provide that, “where a person who has attained the age of 14 but under the age of 16 commits a crime of intentional homicide, intentional infliction of bodily harm which has resulted in a serious injury to or death of any other person, rape, robbery, drug trafficking, arson, explosion, or poisoning, the person shall assume criminal liability.”

It is noteworthy that, there was a miscellaneous provision in relation to the age of criminal responsibility in Criminal Law (1979), while the provision in Criminal Law (1997) was more specific. Considering the narrow definition of poisoning, the Amendment (III) substituted “poisoning” with “adding or releasing hazardous substances” which is still in use currently.

The significant and controversial modification of the Amendment is reducing the age of criminal responsibility from 14 years old to 12 years old, adding the provision that:

“Where a person who has attained the age of 12 but under the age of 14 commits a crime of intentional homicide or intentional infliction of bodily harm, which has resulted in the death of any other person or the serious disability of any other person for the serious injury inflicted by especially cruel means, and the circumstances are execrable, the person shall assume criminal liability with the Supreme People’s Procuratorate’s affirmation of prosecution.”

This clause has been included in the Criminal Law in that there have been more and more violent cases committed by the young age in recent years, which has drawn wide attention from the public. Whether to reduce the age of criminal responsibility, as well as the issue of reducing the age range of criminal responsibility, there are a lot of disputes in the whole society in different fields. Nonetheless, the legislation has amended the age of criminal responsibility, the important step next is the implement of this provision, which will be a challenge for public security, procuratorate and courts in the future.

From my perspective, juvenile delinquency will not necessarily be increased on account of the reduction of the age of criminal responsibility. To some extent, the clause works as a legal reminder to minors over the age of 12 that they are not supposed to take their young age as a shield to avoid criminal responsibility when committing a serious crime harmful to society. Even though the age of criminal responsibility has been reduced, there will be strict procedural limits to holding minors over the ages of 12 but under the age of 14 criminally responsible, such as the affirmation of prosecution by the Procuratorate. However, many uncertainties need to be clarified further by interpretations in the future, in terms of “the execrable circumstances” and the procedure of affirmation of prosecution by the Procuratorate.

 

There are also some disagreements in understanding whether the object of the criminal responsibility which should be borne by minors between the age of 12 and 14 is a specific crime or an abstract act containing relevant crimes. If it is a specific crime, minors between the ages of 12 and 14 bear criminal responsibility only for intentional homicide or intentional infliction of bodily harm. Whereas, if it is crime with consequences resulting in death or serious injury, this crime may include other crimes, such as robbery (when resulting in death). Legal experts holding this opinion believe that the original intention of the Amendment is to protect the public’s rights of life and health. Robbery causing death is no less bad than intentional homicide. Therefore, if it does not constitute a crime to deprive others of their lives for the purpose of looting, it is a lack of legislation.

From my perspective, the object of this provision is a specific crime.

First of all, the scope of criminal responsibility for 12 to 14 years of age is certainly narrower than the scope of crimes for 14 to 16 years of age. Most of the crimes that minors between 14 and 16 years old should bear criminal responsibility are likely to result in the death or serious injury to victims. If the intent of the provision focuses on the consequences rather than crimes per se, such a statement will lose its meaning.

Secondly, the provision literally describes “a crime of intentional homicide or intentional infliction of bodily harm” as the juvenile delinquent between age 12 and 14 committing.

At last, criminal law should keep its modest nature. A criminal law cannot be expected to solve all problems. Criminal penalty as education to juvenile delinquents between 12 and 14 years old is never the best option.

It is worth noting that the Standing Committee of the National People’s Congress also passed the Law for Prevention of Juvenile Delict, suggesting that there should be coherence between different laws. The Amendment shall order the parents or other guardians of juveniles who are not subject to criminal punishment because they are under the age of 16 to discipline them. When necessary, special correction education shall be conducted according to laws. Such provisions are in line with the Law for Prevention of Juvenile Delict. The previous article also provided for a measure called Detaining for Reeducation, which was also changed by the Amendment. The legislature believes that reeducation and detention education will soon be abolished, the relevant legal system should be integrated into the Law on Punishment for Public Security Administration and the Criminal Law for adjustment. Furthermore, the Law for the Prevention of Juvenile Delict provides special institutional interventions to address these problems.

In the past, criminal responsibility was divided into absolute criminal responsibility and limited criminal responsibility, while the Amendment added the age of 12 to 14 years into the age of criminal responsibility. Whether it will fall into the concept of limited criminal responsibility or experts will bring up a new expression in relation to it is worth discussing in the future. The Amendment reduces the age of criminal responsibility, but it also limits specific charges and legal consequences and stipulates strict procedures. Thus, it is not necessary to worry about the results of the reduction of the age of criminal responsibility.

 


Post time: Apr-08-2021