The Construction Of Juvenile Justice With Chinese Characteristics

In recent years,issues about the minors,such as child abuse,guardianship of minors and prevention of juvenile delinquency are highly concerned in theory and in practice.However,we can find that a lot of current researches are from the perspective of criminal law,and without the systematical study of juvenile justice.This dissertation is going to research the construction of juvenile justice system with Chinese characteristics,which is on the basis of protecting juveniles and preventing juvenile offenders.Actually,criminal law is not the only content of this dissertation,civil protecting cases and administrative cases are also discussed.This dissertation can be divided into six parts.The first chapter is about outlines of juvenile justice.Since ancient times,it has been a tradition of "caring for the youth" in China.Nowadays,we are stepping into a path of special legislation.The law on the prevention of juvenile delinquency,Law on the protection of minors and some other laws which take minors as specific subject have been legislated.However,when comparing with three juvenile justice systems which are systematical,comprehensive and practical,our current juvenile justice system has some disadvantages,including decentralization of legislation while without systematization,depending on traditional justice system and lacking of independence,dealing cases narrowly and lacking of comprehensiveness,without sound treatment system and only focus on criminal punishment.Fortunately,integration has provided a new perspective for constructing juvenile justice with Chinese characteristics.In the view point of integration,substantive law,procedural law,organization law and the execution law of minors should all be involved in juvenile justice system.Juvenile justice system not only deal with juvenile cases,but also deal with juvenile victims’ cases.Meanwhile,juvenile criminal cases,civil cases and administrative cases are also regulated by this Chinese characteristics.The second chapter is trying to decide the basic theory of our juvenile justice system by comparing domestic theories with theories overseas.When it concerns to the western juvenile justice system,the theory of parens patriae accelerated its formation and the idea of the best interest of the child promoted its development.Parens patriae originated from England and related with feudal land ownership,and its application has expand from guardianship cases to a lot of modern fields.Currently,parens patriae is the crucial foundation of western justice.In the matter of the best interest of the child,there are some issues about this idea,such as its’ conceptional vagueness.However,the best interest of the child is recognized by many countries and regions gradually,and it is confirmed as basic principles of juvenile justice by international treaties and norms.In terms of Chinese traditional idea and current development,we can not copy parens patriae and the best interest of the child indiscriminately,but we can learn a lot form these two theories.According to juvenile delinquency situation in China,we should persist in dual protection of the interest of the society and the interest of juveniles.Therefore,the behaviors of juveniles should be regulated and the protection of juveniles’ legal rights should also be ruled.Basically,the protection of juveniles’ rights and prevention of juvenile delinquency have to be our basic values during the constructing of juvenile justice system with Chinese characteristics.The third chapter introduces the application of juvenile justice.Clarifying the applicable targets is one of precondition of constructing juvenile justice system.Juveniles and minors are two conceptions which are confused usually,but from the perspective of Chines legal system,the former is more suitable and distinctive and can be applied in constructing of juvenile justice system with Chinese characteristics.Actually,the conception of minors can be still used in some fields,such as minors courts,abroad systems’ comparison and learning.At the same time,we should combine juveniles’ mental and physical characters and define people under eighteen years old as juveniles.The other precondition of constructing juvenile justice system is clarify the scope of juveniles behaviors.By empirical investigation and cases’ study,the dissertation proposes to calrified juveniles’ behaviors.In order to prevent juvenile delinquency forwardly,bad behaviors of juveniles,such as smoking,drinking,school-bullying,escaping school,playing truant,running away from home,bad communication and bad surfing should be regulated by juvenile justice.Starting from the critical prevention of the juvenile delinquency,disorderly conducts,gambling,drug addiction,sex trading and other illegal activities of juveniles should be governed by juvenile justice.In order to prevent juvenile delinquency specially,the juvenile criminals should be regulated,especially the violent crimes,property offenses and sexual offenses.The fourth chapter addresses the construction of juvenile judicial organizations.The 19th National Congress of the Communist Party of China marks our country stepped into a new age.Even though we must face with a lot of contradictions,difficulties and challenges during the new phrase,the reformation of juvenile judicial organizations is an good example.Juvenile court,juvenile police,juvenile prosecutors and justice social workers are significant parts of Chinese juvenile justice system,but the development of these parts are not promising.After exploring for over thirty years,there are some obvious shortcomings in juvenile courts,such as theories and values are left behind,development in different districts are unbalanced,without integral form and professional teams After building the first juvenile court,China has been trying to set up professional sections and special officers among the public security organs.However,this exploring about profession and specialization is still without characteristics.Thus,we should clarify the legal importance of juvenile policing and set up juvenile police institutions at county-level public security organs.It is unnecessary to set up juvenile police agencies in city-level public security organs,rather than adjust the functions of juvenile police.As an organ for examination,prosecution of juveniles and the supervision of relevant judicial proceedings,the people’s procuratorates is a vital part of juvenile’s judicial activities.However,the concept of juveniles’ protection in prosecutorial work in China is not clear,it also has many other problems,such as lacking of clarity and stability,limited scope of functions,without unified names and lacking professional teams.This dissertation is truing to adjust and rebuild the juvenile procuratorial mechanism in China,mainly by unifying the title,regulating the level sets,adjusting the scope of functions,strengthening the construction of the professional teams of juvenile prosecutor,and then construct juvenile justice system with Chinese characteristics.Additionally,we should also recognize the importance of social work in the judicial activities of juveniles.The social worker is an important role in juvenile justice system,as they has consistent ideas with juvenile justice,with the ability to undertake the judge judicial,prosecute,investigate and many other judicial affairs,and can also conforms with the special requirements of juvenile judicial work.There is no doubt that social work is closely related to the prevention of juvenile delinquency and the protection of the rights of juveniles.Therefore,we should increase the government’s purchase of social worker services in the process of building the juvenile justice system with China characteristics,and apply it to juvenile justice appropriately.The fifth chapter discusses the is about the exploration of trial system of minors with Chinese characteristics.Juveniles’ physical and mental development are quite different with adults,so they should be treated differently by litigation procedures,not only for juvenile criminal cases,but also for civil cases and administrative cases that relate with juveniles’ interests.Education should be regarded as the foundation,punishment should be treated as the secondary goal and protection of juveniles should also be taken account when we deal with the juvenile cases.Meanwhile we should pay attention to the establishment and improvement of relevant systems such as non-public hearing,appropriate adult attending and social investigation.Thus,we can explore the systematic construction of juvenile cases trial with Chinese characteristics by starting with the trial procedure of juvenile criminal cases,the trial procedure of juvenile civil rights and interests protection cases,and the trial procedure of juvenile administrative judicial protection cases.The sixth chapter elaborates the construction of the mechanism for the protection,treatment and punishment of juveniles with Chinese characteristics.From the perspective of protecting juveniles’ rights and preventing juvenile delinquency,this dissertation mainly discusses the protection of juvenile victims,the treatment of juvenile delinquency,and the criminal punishment of juvenile delinquency.In the construction of juvenile justice system with Chinese characteristics,the research of juvenile victims’ salvation is an essential part of the study.The purpose of protecting juvenile victims is to avoid those juveniles to be a second-damaged victims,and is also to prevent the minor victims to be juvenile offenders.The construction of the assistance system for juvenile victims is mainly from victim compensation,judicial assistance and victimization social assistance.At the same time,family,school and society should be involved to build a victimization prevention mechanism.The treatment of juveniles who run afoul with the law is one of the weaknesses in our juvenile justice.The actual effect of protective measures,such as detention,education and compulsory detoxification is very useless.Therefore,we should dispose juveniles who run afoul of the law with diversified treatments,such as community protection measures.We should also pay attention to the application of intermediate measures and try to reform our training school when we are constructing the juvenile justice system with Chinese characteristics.Certainly’the treatment for juveniles who run afoul of the law must be ruled,and it should has strict procedures,includes investigation,decision,trial and execution.When it concerns to punishment of juvenile criminal offenders,the current mainstream view is to prohibit death penalty,restrict the use of freedom penalty and encourage non-penalty punishment.The current legal provisions in China have explicitly prohibited the application of the death penalty for juveniles,but for free punishment and non penalty measures,it still needs to be further adjusted.With the idea of prevention of juvenile delinquency and the protection of the juveniles rights,this dissertation proposes to prohibit the application of the death penalty,deprivation of life imprisonment,confiscation of property and deprivation of political rights to juveniles minors.And the application of criminal detention,life imprisonment,and fine punishment for juveniles shall also be regulated specially.In the matter of execution juveniles’punishment,we should combine prison execution with community correction and pay more attention to the assistance and education for juveniles.Given timely help and effective treatment,the juvenile offenders could return to society as early as possible.