Study Of The Concretizing Of The Conviction Scope For Person Of Relative Capability For Criminal Responsibility

The Paragraph 2, Article 17 of Criminal Code of People's Republic of China of 1997 provides for the conviction scope of minors over fourteen years old but under sixteen ("relative minor" ),which is positive from some perspectives. Actually, it leads to a new debate over "relativity", namely, between "the theory of criminal act" and "the theory of accusation" under the current criminal situation of relative minor in real life. There have been various judicial construction following even though they can neither resolve the existing debate nor cover possible controversies thereof in the future. However, the judicial departments are generally inclined to "the theory of criminal act" in order to attack crimes more effectively, which results in the excessive expansion of the conviction scope of minors of relative capacity for criminal responsibility and going against the minors.Admittedly, the said expansion, which has to be made, is due to the narrow conviction scope that can not meet the need of judicial practice. But simply pointing out whether the crimes provided in the Article 17 is referred to as a criminal act or an accusation can never settle the contradiction between legislative deficiency and the need of judicial practice. It will sacrifice the certainty of criminal law and the modesty spirit for juvenile criminals.In January, 2006, the Interpretation of Certain Issues from the Application of Law in Trial of Criminal Case of Minor came on. Under the circumstance, the author suggests, the conviction mode of Criminal Code should be affirmed, but considering the current expanding tendency of the scope, the Paragragh 2, Article 17 of Criminal Code need further concretizing by legislative revision on the basis of the assessme.it of the nature and extent of those specific crimes' harm. It may seem to add some accusations, but it provides a feasible way to solve current practical problems. In this way, we can definitude the crimes, adhere to the principle of a legally prescribed punishment for a specified crime, and clear up obstacles for judicial practice as well.This article is composed of three parts except the preface and the conclusion. The preface is to review the current situation of the expansion of the conviction scope of persons of relative capacity for criminal responsibility, then to give an appropriate concretizing of the scope.Part One General situation of the expansion of the conviction scope for persons of relative capacity for criminal responsibilityThis part presents largely the criminal situation of relative capacity for criminal responsibility and the situation of the related legislation and judiciary. Then it will point out the defects in the expansion of the conviction scope and suggest the Paragragh 2, Article 17 of Criminal Code should be further concretized by means of legislative revision.Part Two The basis and the foundations for the concretizing of the scopeThe author suggests that specific crimes stipulated in the subprovision of Criminal Code be concretized on the basis of the assessment to the nature and extent of their harm. The reasons and the foundations include the theoretic basis persons of should focus on the Paragraph 2,Article 17 of Criminal Code of 1997 to amend the legislation by incorporating the mode of conviction thereunder through criminal , policy basis and reality basis. At the same time, it designates the direction for the concretizing as it introduces and analyzing the relevant legislations of foreign countries.Part Three The principles and the approaches for the concretizingIt's necessary to concretize the conviction scope for persons of relative capacity for criminal responsibility. But how to control the concretizing process exactly? We can neither excessively expand the scope nor cause loopholes. So the concretizing should be conducted under certain conductive principles by the legislative mode as "set-out". We should supplement and set out some accusations to make law more precise. The aim is to adhere to the principle of a legally prescribed punishment for a specified crime and avoid the mess from the debate over 'accusation' and 'act' between academic circle and judicial departments while meeting the need of judicial practice.The conclusion sums up the content of this article, and come up with the necessity of further research due to the author's limited ability, the insufficiency of preparation and impropriety in the pectination of the subprovision of Criminal Code.