The Advocacy Of Minimum Age Of Criminal Responsibility Flexible Legislation

Since the enactment of the criminal law in 1979,whether and how to lower the minimum age of criminal responsibility has been a controversial issue for nearly half a century.There are many differences in this debate.At the macro level,it is manifested in the bipolar opposition between the public ’s call for downgrading and the prudent maintenance of the academic community.At the academic level,it has formed a ternary confrontation between the maintenance theory,the reduction theory and the elasticity theory.In this complex context,the ’Criminal Law Amendment(XI)’has individualizedly lowered the minimum age of criminal responsibility,but this legislative response is not a natural result of the elimination of disputes,but a result of public opinion,position competition and practical difficulties.Therefore,the controversy did not end with the amendment of the law of form,but showed a state of rising instead of falling.It can be said that whether it is an analysis and response to the current legislative adjustment or a subsequent improvement of the system outlook,it must be based on the clarification of the entanglements related to the minimum age of criminal responsibility system,otherwise the value of its argument will inevitably move forward due to the ’wooden boat’.This paper argues that the deadlock of this issue is mainly due to the complexity and adsorption of the age of criminal responsibility system itself.The legislative provisions of the minimum age of criminal responsibility are the product of comprehensive consideration of many disciplines such as criminal law,psychology,biology and criminal policy.Therefore,the discussion of this issue in the academic circle often presents different logic and different perspectives.Therefore,this paper intends to analyze the controversial arguments on the basis of logical division,in order to complete the connection from ought to reality,theory to effectiveness.In detail,this paper is divided into six parts.The first part is the introduction of the controversial dilemma of the age of criminal responsibility,that is,the controversial theory of the age of criminal responsibility system is summarized and analyzed.The second part is the analysis of the legislative mechanism of the age of criminal responsibility.Through the analysis of the criminal law itself,the criminal policy level and the legislative technical level,the factors of the minimum age of criminal responsibility legislation are restored.The third part is the legitimacy analysis of the age elasticity of criminal responsibility legislation,which consists of two aspects.On the one hand,through the analysis of the above three legislative factors,the necessity of flexible legislation is highlighted.On the other hand,as a legislative design for the expansion of discretion,the flexible legislative model needs to have certain judicial carrying capacity to share the discretionary restriction function of rigid legislation,so it is necessary to demonstrate its feasibility.Through the triple analysis of the content of juvenile justice,juvenile justice procedure and juvenile justice subject in China,this part holds that China has the possibility of legislative relaxation.The fourth part is the’Criminal Law Amendment(11)’provisions on the age of criminal responsibility and flexible application.Whether the individual reduction of the minimum age of criminal responsibility is the continuation of the one-size-fits-all scheme or the construction of the flexible legislative model is not uniform in the academic circles.This disagreement stems from the uncertainty of the functional attributes of the new provisions and the ambiguity of the source of elasticity.In other words,what kind of theory is used as an internal drive under this legislative framework will determine the model attributes and improvement direction of the clause itself.Based on the legitimacy analysis of the elasticity theory,taking the former as the theoretical supply will maximize the value implication of the new clause,and the plot element is the key factor to activate this elastic clause.The fifth part is the perfection of the flexible legislative model.After embedding the theory of elasticity into the throne of legislative provisions,how to gradually narrow the deviation between the appeal of provisions and the theoretical supply is the key.The essence of this correction is how to construct a scientific and feasible multi-consideration system to improve the accuracy of the judgment of criminal responsibility ability,so as to realize the substitution of multiple relative judgment standards for a single absolute judgment standard.Based on the objective consideration of juvenile delinquency.this paper takes the social investigation of juvenile personality as a supplement,in order to roughly outline the judgment system of criminal responsibility ability.The sixth part is the conclusion,which is mainly about the improvement of the treatment measures for juvenile delinquency.Although the minimum age of imprisonment is for the crime of young children,its value can not be realized only through the simple division of the minimum age of imprisonment.Whether the rights of children are protected and whether the justice of victims is realized,it is necessary to find appropriate treatment modes and disposal measures.Only by establishing a ladder of treatment measures that takes into account the protection of minors and the comfort of victims based on the macro perspective of juvenile delinquency,can the contradiction between judicial justice and social justice be alleviated to the greatest extent,so as to fundamentally reduce the impact of public opinion on the minimum age of criminal responsibility system.