Global Snapshots on Child Law周报(第四期电子版)

【焦点热评】

非洲“学习贫困”如何突围

关键词:学习贫困,教育发展,国际支持,自我治理

中国教育报2020年8月21日载,为了引起公众对全球特别是非洲地区阅读危机的重视,世界银行提出了“学习贫困”(Learning Poverty)的概念,指儿童到了10岁尚不具备阅读和理解简单故事的能力。

最新数据显示,全球中低收入国家的“学习贫困”率约为53%,而非洲区域的“学习贫困”率则高达87%。“学习贫困”关乎教育教学质量和未来国民素质的高低,是可持续发展题中应有之义。对许多非洲国家而言,治理“学习贫困”比消除经济贫困显得更为迫切。

当前,许多非洲国家“学习贫困”率居高难下,一方面是受教育基础薄弱的影响,另一方面与全民教育指标落实不力的后遗症不无关系。全民教育(EFA)的实施曾为推进非洲国家适龄儿童受教育机会的扩大作出了重要贡献,但随着教育数量的扩张,教育质量未能同步跟进,为实现全球2030年可持续发展议程中的教育愿景带来了巨大挑战。

(一)理想目标落实不力

作为千年发展计划的一项重要内容,全民教育行动提出了6项教育发展目标,旨在推动世界各国特别是非洲地区的儿童、青年和成年人享有优质的基础教育。然而,有研究指出,非洲地区全民教育运动落实进程中,没能做到质量提升与数量扩张同步进行,师资力量匮乏、教材覆盖率有限等现象不断凸显,设计者美好的初衷在撒哈拉以南非洲落实过程中暴露出了“水土不服”。

据2015年全球监测报告,非洲国家的6项全民教育指标推进呈现出显著的差异化特点,其中,基础教育普及率方面取得的成效最为显著,从原来的47%上升到了67%,提高了20%;其次为初中教育完成率和成人识字率,分别提高了16%和11%;而学前教育入学率、性别平等和小学教育巩固率的提高均不足10%。

除却6项指标间落实不均衡外,还呈现出整体取得进步的同时存在进退夹杂的情况,有些国家在某些方面出现停滞不前甚至倒退现象。例如,在喀麦隆,进入中学阶段半工半读的12到14岁儿童约占70%;安哥拉的性别差异情况在进一步恶化。

此外,区域平均数掩盖了国家之间的差异,非洲各国全民教育进展很不均衡。以2012年为例,撒哈拉以南非洲小学教育入学的性别差异指数为0.94,包括布隆迪和赞比亚在内的12个国家达到了0.97或以上,基本实现了性别平等。而安哥拉、中非、乍得和南苏丹男女生入学比例则不足0.8,实现了教育性别平等的国家拉高了整个区域性别平等水平。

多数非洲国家在推进全民教育的过程中,曾力图兼顾教育公平与教育质量。然而,有些非洲国家积贫积弱,在财力一定的情况下,只得优先保障更多人享有受教育机会,致使全民教育运动更像是一场全民入学运动,为后续“学习贫困”问题凸显埋下了隐患。

(二)基础条件多维受限

某种程度上,非洲国家的“学习贫困”问题,是陷入“一步差、步步差”的旋涡中难以避免的现象。落实全民教育目标的欠账需要2030教育愿景中有质量的教育为其买单。

从师资队伍的数量和质量来看,一方面,许多非洲国家生师比过高,教师很难对每个学生给予充分关照,教学指导不到位,教学效果难以保障。另一方面,随着基础教育入学率普遍提高,必然要新增教师数量作为基本保障,难免给许多未经培训的不合格或者不称职教师创造了机会。许多非洲国家努力扩大教师数量、转变用人机制、改变教学方法和实施新的教育政策。但缺乏配套的教师个人发展及质量控制,反过来又影响了教育质量,也影响了教育的可持续发展。应时之需招募的教师缺乏应有的教师素养和责任心。例如,肯尼亚、乌干达等国的教师缺课率高达25%—30%,给学生的学习积极性造成了负面影响,致使学习效果欠佳,辍学率不断攀升,最终造成了教育资源的浪费。

从教材供给来看,非洲国家教材数量普遍稀缺,许多学生共享一本教材的现象较为普遍。情况相对较好的南非也经常受到教材问题的困扰。南非教材发展研究院指出,南非教育机构使用的教材质量和效用备受忽略,且其对教育质量的影响程度也被大大地低估了。南非出版行业每年从南非基础教育部获取的教材订单高达15亿兰特,但未能及时按照要求供应教材,每年都会出现教材交付不及时或是分发失误等现象,有时学校开学数月才能领到教材。甚至有些学校还会发生由于省级教育部门没有预订,致使学生领不到教材的情况。教材是开展课程教学的重要媒介,是学校教育获得知识和能力所依赖的主要途径,如果发放不及时且教材数量稀缺,基本教育教学质量尚难以保证,遑论阅读和学习效果。

(三)借鉴先行者突围路径

非洲国家的“学习贫困”问题治理,既要需要国际社会的指引和援助,又需要实现自我治理。因此,向内汲取榜样的成功举措,有助于其他非洲国家更好地协调教育质量提升与数量扩张失调的问题。地处东部非洲印度洋的群岛国家塞舌尔,在推进全民教育运动进程中采取的政策和措施,对整个非洲大陆的全民教育甚至对2030年教育发展目标的实现均有一定的启示意义。

据塞舌尔2015年度全民教育国家报告显示,该国全面实现了全民教育6项目标。从该国全民教育进展成效来看,尽管塞舌尔面临经济发展受限、官方开发援助缩减以及商业借贷增加等挑战,但全面实现了千年发展目标特别是与教育质量相关的目标,其中青年识字率达到97%、基础教育普及和中小学性别平等指标等已经得到落实。世纪之交,塞舌尔极为重视提高教育质量、加强教师教育、提升课程相关性和促进终身学习。塞舌尔结合本国实际将全民教育6项目标本土化,且始终以质量为核心。

而与此相对的是,非洲其他国家因认知差异和国内局势不同,更多地以牺牲教育质量为前提推进全民教育运动,致使其与2030年有质量的教育目标背道而驰,“学习贫困”诱因不断累积。因此,非洲国家要制定契合本土发展需要且以质量为中心的教育规划,确保将历史欠账后遗症的负面影响降到最低。

总之,非洲“学习贫困”问题,是“有学上”的问题基本解决后,“上好学”的问题更加突出。突围路径从外部驱动看,需要国际社会的关注和帮助,更需要区域内的榜样带动,前拉后推,内省外察,形成合力。从内部困境应对而言,首先要加强教师培训,强化教师素质,提高教师责任心,夯实教育教学质量的基础。其次,努力保障教材供给,重视教材建设,立足国情选取培植国家认同的教学内容,培养学生立志国家发展建设的情怀。

从战略高度来看,教育是推动减贫和发展强有力的驱动器,非洲国家需要认识到“学习贫困”与全球贫困密不可分,治理“学习贫困”是全球贫困治理的核心。瑞士学者安德烈亚斯·威默在《国家建构:聚合与崩溃》一书中指出,平均而言,将识字率提高28%,则被排斥的人口比例降低30%。因此,“学习贫困”不仅关乎阅读能力,更关乎社会公平与全民素养的包容性。

评论

2016年1月1日,《2030年可持续发展议程》正式启动,193个联合国会员国为实现这17个可持续发展目标而共同奋斗。非洲“学习贫困”反映的是其背后的教育落后问题,教育落后与非洲贫困问题互为因果,非洲贫困问题解决与全球贫困的消除相互依存、密不可分。

学习贫困直接反映为阅读能力的不正常低水平状态,阅读是知识的通道,是学习的门户,学习贫困影响教育质量,同时教育普及程度及教育质量高低又反作用于“学习贫困”率的高低,对于非洲大多数经济基础和教育力量本身薄弱的国家来说,很容易陷入学习贫困的恶性循环。因而,非洲“学习贫困”问题固然要靠非洲各国自我发展、自我治理,但国际上的支持和帮助也必不可少。

原文链接:http://paper.jyb.cn/zgjyb/html/2020-08/21/content_583417.htm?div=-1

撰稿:白雪

翻译:冯力力

编辑:兰嘉颖

How to Breakthrough ‘Learning Poverty’ in Africa

Key words: learning poverty, educational development, international support, self-governance

China Education News reported on August 21, 2020 that in order to arouse the public’s attention to the reading crisis in the world, especially in Africa, the World Bank proposed the concept of “Learning Poverty”. This refers to the phenomenon that children are incapable of reading and comprehending simple stories by the age of 10. The latest data show that the learning poverty rate in low- and middle-income countries is about 53 percent, while the learning poverty rate in the African region is as high as 87 percent.

‘Learning Poverty’ is related to the quality of education, teaching and the level of national quality in the future. Solving such problem is paramount to attaining sustainable development. For many African countries, combating “learning poverty” is more urgent than eradicating economic poverty. At present, many African countries suffer from high rates of “learning poverty”, which is partly due to the weak educational foundation and partly due to the poor implementation of education indicators for all.

The implementation of Education for All (EFA) has made an important contribution to promoting the expansion of educational opportunities for school-age children in African countries. However, as the number of children receiving education expands, the quality of education fails to keep pace with it, which poses a great challenge to the realization of the vision of education in the global 2030 Agenda for Sustainable Development.

(1) The implementation of the ideal target is ineffective

As an important part of the Millennium Development Plan, the Education for All Initiative has set out six educational development goals aimed at promoting access to quality basic education for children, youth and adults in all countries, especially in Africa.

However, some studies have pointed out that in the implementation process of education for all in Africa, quality improvement and quantity expansion have not been carried out simultaneously, shortages of teachers and limited coverage of teaching materials have been constantly highlighted, and the good intentions of designers have been exposed as “acclimation” in the implementation process in sub-Saharan Africa.

According to the 2015 Global Monitoring Report, the promotion of the six education for all indicators in African countries showed significant differentiation. Among them, the coverage rate of basic education achieved the most significant effect, rising from 47% to 67%, an increase of 20%. Secondary school completion rate and adult literacy rate increased by 16% and 11% respectively. Preschool enrolment, gender equality and primary school retention have all improved by less than 10 per cent.

In addition to the uneven implementation among the six indicators, the progress made on the whole has been mixed with advance and retreat, and some countries have stagnated or even regressed in some respects. In Cameroon, for example, about 70 per cent of children aged 12 to 14 enter secondary school on a part-time basis;

The gender gap in Angola is worsening. In addition, regional averages make differences between countries and African countries make uneven progress in education for all. In 2012, for example, the gender gap index for primary school enrolment in sub-Saharan Africa was 0.94, while 12 countries, including Burundi and Zambia, reached 0.97 or above, nearly realizing gender equality. In Angola, Central Africa, Chad and South Sudan, the proportion of boys and girls enrolled in school was less than 0.8. Countries that achieved gender equality in education increased gender equality across the region. In the process of promoting education for all, most African countries have tried to balance educational equality and quality. However, some African countries are poor and weak, and under certain financial conditions, they have to give priority to guarantee wide accessibility to education over quality issues. As a result, the education for all campaign is more like a campaign for universal enrollment, which lays a hidden danger for the subsequent highlighting of ‘Learning Poverty’.

(ii) Multi-dimensional restriction of basic conditions

To some extent, the “Learning Poverty” problem in African countries is an unavoidable phenomenon in the whirlpool of “step by step, step by step”. The education for all deficit will require quality education in the 2030 Education Vision to pay for it. From the perspective of the quantity and quality of the teaching staff, on the one hand, the student-teacher ratio in many African countries is too high, which makes it difficult for teachers to give sufficient care to each student, the teaching guidance is not in place, and the teaching effect is difficult to guarantee. On the other hand, with the general increase in the enrollment rate of basic education, the number of new teachers must be taken as the basic guarantee, which inevitably creates opportunities for many unqualified or incompetent teachers without training.

Many African countries have made efforts to expand the number of teachers, change employment mechanisms, change teaching methods and implement new education policies. However, the lack of supporting teachers’ personal development and quality control, in turn, affects the quality of education and the sustainable development of education. The teachers recruited to meet the demand do not have high-level quality and responsibility. For example, in Kenya, Uganda and other countries, the teacher absenteeism rate is as high as 25%-30%, which has a negative impact on students’ learning enthusiasm, resulting in poor learning effect, increasing dropout rate, and finally resulting in a waste of educational resources.

From the perspective of textbook supply, the quantity of textbooks in African countries is generally scarce, and it is quite common for many students to share a textbook. South Africa, which has done relatively well, has also been plagued by textbook problems. According to the South African Institute for The Development of Teaching Materials, the quality and effectiveness of teaching materials used by educational institutions in South Africa have been neglected and the extent of their impact on the quality of education has been greatly underestimated. The South African publishing industry receives up to 1.5 billion rand of orders for textbooks from the Ministry of Basic Education every year, but it fails to supply the required textbooks on time. Every year, textbooks are not delivered on time or distributed correctly, sometimes for months before schools open.

Some schools even fail to receive textbooks because the provincial education authorities have not booked them. As an important medium for curriculum teaching, textbooks are the main way for school education to acquire knowledge and skills. If textbooks are not released in time and the quantity is scarce, the quality of basic education and teaching cannot be guaranteed, let alone the effect of reading and learning.

(3) Draw lessons from the path of the pioneers

African countries need not only guidance and assistance from the international community, but also self-governance to “learn from poverty”. Such successful initiatives that look inward could help other African countries better balance the mismatch between improving quality and expanding quantity. Seychelles, an archipelago country located in the Indian Ocean of East Africa, has adopted policies and measures in the process of promoting education for all, which are of certain enlightenment significance to education for all in the whole African continent and even to the realization of education development goals by 2030. According to seychelles’ 2015 national report on Education for All, the country has fully achieved six goals for education for all.

From the point of the country’s national education progress results, although the seychelles face economic development limited, official development assistance and increase lending to commercial challenges, but to achieve the comprehensive development goals, especially in one thousand with the goal of education quality related, the youth literacy rate reached 97%, basic education popularization and gender equality index of primary and secondary schools has been implemented.

At the turn of the century, seychelles attached great importance to improving the quality of education, strengthening teacher education, enhancing curriculum relevance and promoting lifelong learning. Seychelles has localized the six goals of education for all in accordance with its national conditions, and always focuses on quality.

On the contrary, due to differences in cognition and domestic situation, other African countries are more likely to promote education for all on the premise of sacrificing the quality of education, which runs counter to the goal of quality education by 2030, and causes of “learning poverty” continue to accumulate.

Therefore, African countries need to develop quality-centered education programs that meet the needs of local development, so as to minimize the negative impact of the legacy of historical arrears.

In a word, the problem of education accessibility has been solved, and the problem of learning to go to school has become more prominent.

From the perspective of external drive, the breakthrough path needs the attention and help of the international community, but also needs the example of the region to lead, pull forward and push back, internal and external inspection, to form a joint force.

To deal with the internal difficulties, we should first strengthen the training of teachers, strengthen their quality, improve their sense of responsibility, and consolidate the foundation of education and teaching quality.

Secondly, efforts should be made to ensure the supply of teaching materials, attach importance to the construction of teaching materials, select and cultivate the teaching content of national identity based on national conditions, and cultivate students’ feelings of aspiring to the development and construction of the country.

From a strategic perspective, education is a powerful driver for poverty reduction and development. African countries need to realize that “learning poverty” is inseparable from global poverty and governance of “learning poverty” is the core of global poverty governance.

In The Construction of The State: Convergence and Collapse, Andreas Wimmer, a Swiss academic, points out that, on average, a 28% increase in literacy reduces the proportion of excluded people by 30%.

Therefore, “learning poverty” is not only related to reading ability, but also related to social equity and inclusive literacy of the whole people.

Comment

On January 1st , 2016, the 2030 Agenda for Sustainable Development was officially launched, and 193 member States of the United Nations are working together to achieve the 17 Sustainable Development Goals. “Learning poverty” in Africa reflects the backwardness in education. Backwardness in education is a mutual cause and effect of poverty in Africa. The solution to poverty in Africa and the elimination of global poverty are interdependent and inseparable. Poor learning directly reflects the abnormal low status for reading ability. Reading is the channel to acquire knowledge, learning rate affects the quality of education. However, in Africa most countries have only possessed weak economic and education foundation, so it is easy to fall into a vicious cycle of poverty study. Therefore, while learning poverty in Africa depends on African countries’ self-development and self-governance, international support and help are also indispensable.

Reference(s): http://paper.jyb.cn/zgjyb/html/2020-08/21/content_583417.htm?div=-

Writer: Xue Bai

Translator: Lili Feng

Editor: Jiaying Lan

引导侨界儿童建立自信心理“乘风破浪好少年”阳光成长夏令营结营

关键词:儿童心理,侨界儿童,夏令营

8月21日,为期3天的“乘风破浪好少年”阳光成长夏令营活动在江阴镇占泽中心小学结营。此次活动由福州市妇联、福州外语外贸学院、致公党福建省委教育帮扶项目实训基地主办,市妇联、江阴镇、福州市小桔灯社会工作服务中心承办,旨在通过举办心理教育活动,提升侨界儿童的自我认同感,提高其社会适应性。连日来,志愿者引导江阴镇50名侨界儿童参加“走进盲人的世界,体验盲人的生活”游戏,强化他们的爱眼意识;举办防校园欺凌教育讲座,引导孩子们学会预防和应对校园欺凌;举办情景剧表演活动,帮助孩子们了解自己生命价值;开班“普法云课堂”,让孩子们养成守法意识;举办财商课,提升他们对自身价值的评估意识。此外,还举办“认识自我”心理教育课,开展“超级比一比”互动游戏,引导侨界儿童建立自尊自信心理。江阴镇有116名18岁以下的失依儿童,长期以来,该镇以强烈责任感,整合社会资源,广泛开展关爱侨界儿童活动,保障侨界儿童的合法权益,优化侨界儿童的成长环境。

评论

侨界留守儿童教育工作虽然取得了一些成绩,但很难在短期内取得显著的效果,可能存在受益面较窄、没有建立长效的帮扶机制、帮扶成效不显著、帮扶难以精准持续发力、在校教育失衡等问题。可以建议筹建成立“侨界留守儿童关爱基金”,鼓励社会力量为关爱活动献爱心,支持侨界留守儿童爱心事业发展。建立长效帮扶机制,让帮扶活动更持续,这也是深化关爱工作,提升活动成效的有效途径。打造“侨”字特色教育,促进留守儿童在校教育良性发展。建立德育导师制,树立“德育回归生活,关注学生成长”的教育理念,让德育工作更加贴近侨界留守儿童的学习与生活,促进侨界留守儿童德育健康成长。

原文链接:www.fqxww.cn/news/benbu/20200824/5f43474f9954c.shtml

撰稿:吴怡君

翻译:白天晴

编辑:兰嘉颖

The “Sailing Children” Summer Camp Helps To Build Confidence For Overseas Left-Behind Chinese Children

Key words: Child Psychology, Overseas Chinese Children, Summer Camp

On august 21st, the three-day “Sailing children” summer camp ended at Zhongxin primary school in Jiangyin. This camp was co-hosted by Women’s Federation of Fuhzhou, Fuzhou Institute of Foreign Studies and Practice training base of Fujian Provincial Party Committee education, Assistance Project and organized by The city women’s federation, Little Orange Light social service center of Jiangyin and Fuzhou. The camp aims at improving overseas children’s self-identification and adaption to the society by several psychological practices. During the camp, the volunteers guided 50 overseas children in jiangyin to experience a blinded world and understand the feelings of being a blind person, which could bring awareness to eyesight-protection. Also, there were lectures about school bullying to help the children deal with the problem; plays that facilitate understanding the value of their lives.; classes about law to enhance their awareness and about finance to improve their self-evaluation. Besides, psychology classes about “self-recognition” and games like “super contest” were held to help the children build up self-confidence. There are altogether 116 children without guardian under 18 years old in Jiangyin town. During a long term the town has put a lot of efforts into protect the rights and create a better environment for the overseas children with strong sense of responsibility and social resources.

Comment

Although there has been progress in overseas left-behind children’s education, improvement is still needed. We are now facing the problem of lacking long-term helping system and continuous efforts. Perhaps we can establish a foundation about overseas left-behind children to support them. Founding a long-term help system is also the effective way to deepen and strengthen the influence. For education, specialized overseas cultural classes can ensure a better development. Moral classes are also able to promote a healthy growth for these children.

Reference(s): www.fqxww.cn/news/benbu/20200824/5f43474f9954c.shtml

Writer:Yijun Wu

Translator:Tianqing Bai

Editor:Jiaying Lan

17岁女生遭52岁男子袭胸 男同学阻止对方逃跑致其受伤遭刑拘

关键词:未成年人保护、见义勇为、未成年人性侵问题

2020年6月1日,湖南永州一17岁女生李爱(化名)在商场被一52岁男子用肘部袭击胸部,同行男同学胡林(化名)在控制袭胸男子时致其受伤,于8月21日被永州冷水滩区公安分局予以刑事拘留,目前在看守所,而当事人了解到袭胸男子可能被下达行政拘留通知书。

8月24日,李爱及胡林父亲在接受采访时均表示,胡林的行为应是见义勇为,不解为何反被刑拘。李爱还透露查询监控时发现袭胸男子当天还袭击了另一个女孩。24日下午,记者发稿前多次联系具体办案民警未得到回应。据李爱透露,目前家属已向湖南省永州市冷水滩区检察院提交申诉材料,“已被受理。”律师认为,如果该男生行为属实,应当被认定为见义勇为,不应当承担刑事责任。

评论

52岁男子的所作所为有相关监控证据表明可能涉及猥亵罪,若经核实则是属于犯罪行为,而因制止该男子的男同学应该属于见义勇为行为,无需承担刑事责任。至于伸出“咸猪手”的不法分子因其当众强制猥亵女性,公安机关调查后可依法追究刑事责任。 此新闻涉及的未成年人遭受猥亵,见义勇为却被刑拘是社会关注的重点问题,应当认真调查,还给社会一个公道,不能让违法分子借机逃脱,也不能让见义勇变成一件没人敢做的坏事。

原文链接:

http://mengma.jinbw.com.cn/queryNewsStringById.do?newid=12114393&flag=1

撰稿:甄雯雯

翻译:白欣悦

编辑:宗诺瑶

A 17-year-old girl was attacked on the chest by a 52-year-old man, and a male classmate prevented the other party from escaping, causing her to be injured

Key words: protection of minors, courageous behavior, sexual abuse of minors

On June 1, 2020, Li Ai (pseudonym), a 17-year-old girl from Yongzhou, Hunan Province, was attacked on the chest by a 52-year-old man with his elbow in a shopping mall. Hu Lin (pseudonym), a fellow male classmate, was injured while controlling the man who attacked the chest. He was detained by the Yongzhou Lengshuitan District Public Security Bureau on August 21. He is currently in the detention center, and the party concerned understands that the man who attacked the chest may be issued a notice of administrative detention.

On August 24, Li Ai and Hu Lin’s father both said in an interview that Hu Lin’s action was courageous and did not understand why he was detained. Li Ai also revealed that during the inquiry and monitoring, it was found that the man who attacked the chest also attacked another girl on the same day. On the afternoon of the 24th, reporters contacted the police several times before the press release and did not receive a response. According to Ai Li, the family members have submitted the complaint materials to the Procuratorate of Lengshuitan District, Yongzhou City, Hunan Province, “which has been accepted.” Lawyers believe that the boy’s behavior, if proven true , is courageous and should not bear criminal responsibility.

Comment

Relevant evidence shown that the 52-year-old man’s actions may constitute indecent assault. If verified, it is a criminal act, while stopping the man’s male classmate should be a courageous act without criminal responsibility. As for the criminals who forcibly molested women in public, the police may investigate the criminal responsibility according to law after investigation. The minors involved in this news were molested, but they were detained for being courageous. It is a key issue of social concern. A serious investigation conducted and justice should be given to the society. Criminals should not get away freely, nor should courageous behavior be apprehended.

Reference:

http://mengma.jinbw.com.cn/queryNewsStringById.do? Newid=12114393 & flag=1

Writer: Wenwen Zhen

Translator: Xinyue Bai

Editor: Nuoyao Zong

哥们义气是青春期涉罪“易爆点”

关键词:未成年,青春期犯罪,案件解读

8月20日检查日报围绕一起案件进行了解读,案件中两名职高学生偶然结识了社会青年小磊。一天,三人一起到KTV唱歌,由于不满被陌生青年“瞅”了一眼,小磊就殴打对方,为显示义气,二人上去帮忙,之后跑回了学校。在得知陌生青年被打住院并报了警的消息,二人主动投案自首。检察官分析两人走上犯罪道路的原因:一是家庭关心不够,没有进行正确引导。二是哥们义气使然。三是心智发育尚未成熟。由于未成年人缺乏抵御外界诱惑的生理机制,缺乏是非辨别能力和自控能力,其犯罪行为往往是一种本能冲动,二人尚未建立起完整的人生观、价值观,在社会不良习气的耳濡目染下,产生冲动情绪,才走上了违法甚至犯罪的道路。本案中,检察官了解到案发后两个孩子心理压力比较大,对二人进行了有针对性的法治教育和心理辅导,并对其父母进行了亲职教育,特别指出哥们义气是青春期涉罪的“易爆点”。综合考虑悔罪态度、积极赔偿、被害人谅解等因素,检察机关对二人作出了附条件不起诉决定。

评论

从该篇案件解读中我们可以看到家庭教育、学校素质教育对未成年人身心发育以及三观的养成的重要作用。检查机关在分析涉案未成年的家庭背景、学校表现以及社会接触环境后,及时总结预防措施,建议通过亲职教育优化家庭环境,监督教育部门督促学校重视对学生的素质教育、均衡教育、全面教育;惩治违法犯罪净化社会环境。虽然在本案中涉案未成年因相关原因并未追究责任,但我们仍要从中吸取教训,切实预防未成年人犯罪发生。

原文链接:http://newspaper.jcrb.com/2020/20200820/20200820_007/20200820_007_3.htm

撰稿:刘美

翻译:丁琦

编辑:兰嘉颖

‘Brotherhood’ is the ‘Fuse’ of Adolescent Crime

Key words: Minors, Adolescent crime, Case interpretation

On August 20th, Procuratorial Daily review a case of adolescent crime. Two high school students and one adult Leiwent to KTV and were involved in a fight. Lei punched the stranger. To show their brotherhood, two high school students went up to help and then ran back to school. After learning that the stranger was hospitalized and had already reported the incidence to police, two high school students voluntarily turned themselves in . The prosecutor analyzed the reasons and motivations behind  students’ actions: firstly, students were not provided with sufficient family care and family discipline was lacking. Secondly, the two students had a strong sense of the so-called “brotherhood loyalty”. Thirdly, since the two students are still minors, their mental development are not yet mature. Due to the lack of physiological mechanism to resist the temptation of the outside world, the ability to distinguish right from wrong and self-control ability, their criminal behavior is often an instinctive impulse. They have not yet established a complete outlook on life and values. Influenced by the bad social habits, they produce impulsive emotions, and then embark on the road of breaking the law and committing crimes. In this case, the prosecutor learned that the students suffered psychological pressure. He carried out targeted legal education and psychological counseling for these two students, and carried out parenting education for their parents, especially pointing out that brotherhood’s loyalty is the ‘fuse’ involved in crimes in adolescence. Considering such factors as penitence attitude, positive compensation and victim’s understanding, the procuratorial organ made a conditional non-prosecution decision.

Comment

From the interpretation of this case, we can see that family education and school compulsory education both play important roles in the physical and mental development of minors and the cultivation of values. After analyzing the family background, school performance and social contact environment of the minors involved, the inspection authorities timely summarized the measures to prevent adolescent crime. It is suggested that the family environment should be optimized through parental education, the supervision and education department should urge schools to pay attention to the quality education, balanced education and comprehensive education of students, punish crimes and purify the social environment. Although in this case, the minors involved were not charged , we should still learn from the case and take effectively actions to prevent the occurrence of adolescent crime.

Reference(s): http://newspaper.jcrb.com/2020/20200820/20200820_007/20200820_007_3.htm

Writer:Mei Liu

Translator:Qi Ding

Editor:Jiaying Lan

岂容美化暴力言论再度荼毒香港学子

关键词: 香港暴力 学生 国安法

摘要:在修理风波后的开学季,香港中文大学学生会炮制的“致新生的家书”将暴力美化和正当化,企图为“黑暴”进行“洗脑”。随着香港国安法颁布实施,对于一些心智不成熟被诱骗的学生,特区政府教育局已出台多项有针对性的措施再联合社会各界,为香港下一代年轻人健康成长的事业奋斗。

开学季将近,许多老师和学长纷纷为新生送上真挚祝福。然而,香港中文大学学生会炮制的“致新生的家书”却包藏祸心、恶意满满。

明明是聚众暴乱,却说是“誓死保卫校园”;明明触犯法律,却对“暴大(暴力大学)人”的称谓沾沾自喜……翻看这份“家书”,其实质是将暴力美化、正当化,堪称又一篇“黑暴”的“洗脑檄文”。

在“修例风波”中,香港中文大学付出了十分惨痛的代价。暴徒一度强占中大校园,并四处纵火、打砸设施、投掷汽油弹、攻击过往车辆及警员,致使学校沦为“战场”和“兵工厂”。暴徒离开后,现场遍地武器、处处垃圾,昔日鸟语花香的中大山城如同一座死城。据校方介绍,修复校园需花费超过5000万港元。

香港中文大学的国际声誉也有所削弱。多位教育界人士担忧,中大的教学和科研进度会受阻,人才可能流失,国际排名或将进一步下跌。众多中大学子的前途都可能因此受到影响。

令人遗憾的是,这份“家书”非但没有反思暴力酿成的恶果,反而将其美化为“反抗精神”,更声称要以“反抗的精神”传承中大的人文精神。

学界一般认为,人文精神指的是以人为本,尊重人的尊严、价值、权利和自由。以此为衡量标准,暴力不仅无法延续人文精神,更是对人文精神的粗暴践踏。

在香港的大学校园内,许多教授潜心教学和科研、学生安心学习。然而,当“黑暴”袭来时,部分激进分子辱骂、骚扰持不同政见的老师和同学,大批老师和学生被迫仓皇撤离,其基本人权与自由难以得到保障,其学术自由严重受损。

需要强调的是,尊重人文精神绝不是个别人以一己私欲损害公众利益的借口,鼓励学术自由绝不是鼓吹分裂、祸乱香港的自由。

随着香港国安法颁布实施,其震慑效应已初步显现。反中乱港分子阵脚大乱,有的声称“淡出政坛”,有的高调“割席”试图“自证清白”,还有的悄悄外逃以逃避法律追责。然而,仍有类似中大学生会的组织不知收敛,继续将黑手伸向教育,企图再次将学生作为“炮灰”和“政治燃料”,以谋取政治私利。

在“修例风波”中,一些心智尚未成熟的学生已被诱骗利用。仅以截至今年6月30日的数据看,香港涉“修例风波”被拘捕者已超过9000人,其中40.4%为学生。因此,广大学生应吸取教训、明辨是非,避免本该美好的前途毁于一旦。

事实上,香港中文大学学生会的“家书”只是香港教育乱象的冰山一角。多年来,香港教育系统可谓百弊丛生。从煽动学生仇视内地的“毒教材”,到诅咒香港警察“死全家”的“毒老师”,再到散播歪曲历史、反中乱港言论的“毒考题”……这些事实都表明,香港应当下大力气解决教育问题。

目前,特区政府教育局已出台多项有针对性的措施。如:教育局发出通告,要求校方向学生解读香港国安法立法背景、主要内容及意义,以提高国家安全意识与守法意识;香港中小学在举办庆祝元旦日(1月1日)、国庆日(10月1日)的活动时必须升国旗、唱国歌。社会各界认为,上述措施有助推动教育领域的拨乱反正。

然而由于积弊甚深,要解决香港教育问题依然任重道远。今后,香港要加强对青少年的基本法教育、国情教育等,对散播“港独”、鼓吹“黑暴”的言论“零容忍”。关心香港下一代的社会各界也应当积极参与到呵护年轻人健康成长的事业中,共同斩断伸向教育、伸向学生的黑手。

评论:

此报道针对香港修理风波后,香港中文大学学生会炮制的“致新生的家书”中存在的严重社会问题,再分析其学生参与暴力后的后果,最后通过香港国安法颁布实施后对学生产生的影响,联合相关政府和社会各界的力量,阻止“黑暗势力”进入学生,为香港青年人打造一个光明的未来。

原文链接:

http://www.xinhuanet.com/2020-08/24/c_1126406025.htm

撰稿:熊娅舟

翻译:任书仪

编辑:任书仪

How can we not allow the glorification of violent speech to harm Hong Kong students again?

Keywords Hong Kong Violence, Students, National Security Law

Abstract: In the aftermath of the repair controversy, the Chinese University of Hong Kong Student Union has concocted a “Letter to New Students” that glorifies and legitimizes violence in an attempt to “brainwash” the “black violence”. With the enactment of the National Security Law in Hong Kong, the Education Bureau of the HKSAR Government has launched a number of targeted measures to fight for the healthy development of Hong Kong’s next generation of young people, in collaboration with various sectors of the community, for students who have been lured by immature minds.

As the new academic year approaches, many teachers and seniors are sending their best wishes to the new students. However, the Chinese University of Hong Kong Student Union’s “Letter to New Students” is full of mischief and malice.

Obviously, it is a riot, but said to “defend the campus to the death”; obviously violated the law, but the “violence (violence university) people,” the title of complacency … … look over the “letter”, the essence is to glorify violence, justified, can be called a “black violence” of the “brainwashing critique”.

The Chinese University of Hong Kong has paid a very painful price in the “amendment storm”. At one point, the mob forcibly occupied the CUHK campus and set fire to, smashed facilities, threw petrol bombs, and attacked passing vehicles and police officers, turning the university into a “battlefield” and an “arsenal”. After the thugs left, the scene is full of weapons, garbage everywhere, the former birds and flowers in the mountain city of CU as a dead city. According to the university, it will cost more than HK$50 million to restore the campus.

The international reputation of CUHK has also been weakened. Many educators are worried that CUHK’s teaching and research progress will be hampered, that it may lose talent and that its international ranking may fall further. The future of many CUHK students may be affected as a result.

Regrettably, instead of reflecting on the evil consequences of violence, this “letter” glorifies it as a “spirit of resistance”, and even claims that the humanistic spirit of CUHK is to be inherited with a “spirit of resistance”.

It is generally believed in the academic world that the humanistic spirit refers to humanism and respect for human dignity, value, rights and freedom. Using this as a yardstick, violence not only fails to perpetuate the humanistic spirit, but also violently tramples on it.

On Hong Kong’s university campuses, many professors devote themselves to teaching and research, while students study without fear. However, when “black violence” struck, some radicals verbally abused and harassed teachers and students who held different political views, and a large number of teachers and students were forced to evacuate in a hurry.

It should be emphasized that respect for the humanistic spirit should never be an excuse for individuals to harm the public interest with their own selfish desires, and the encouragement of academic freedom should never be freedom to advocate secession and chaos in Hong Kong.

With the enactment of Hong Kong’s National Security Law, its deterrent effect has initially appeared. Anti-Chinese elements in Hong Kong are in disarray, with some claiming to “fade away from politics”, some high-profile “cut seats” in an attempt to “prove their innocence”, and some quietly fleeing the territory to evade legal accountability. However, there are still organizations similar to the Chinese University Students’ Association that do not know how to stop, and continue to extend their black hands to education, trying to use students as “cannon fodder” and “political fuel” again for political personal gain.

Some immature students have been deceived and taken advantage of in the “law revision controversy”. According to the figures up to 30 June this year alone, more than 9,000 people have been arrested in Hong Kong in connection with the “legislative amendment controversy”, and 40.4% of them are students. Therefore, students should learn a lesson from the incident and distinguish between right and wrong to avoid ruining their bright future.

As a matter of fact, the “letter home” from the Student Union of The Chinese University of Hong Kong is only the tip of the iceberg of the chaos in Hong Kong’s education system. Over the years, Hong Kong’s education system has been riddled with flaws. From “poisonous teaching materials” that incite students to hate the Mainland, to “poisonous teachers” who curse the Hong Kong Police Force for “killing the whole family”, to “poisonous teachers” who disseminate distorted history and anti-China and chaotic remarks about Hong Kong. “Poison test questions” … these facts show that Hong Kong should make great efforts to solve the problem of education.

At present, the Education Bureau (EDB) of the SAR Government has introduced a number of targeted measures. For example, the EDB has issued a circular requiring schools to explain to students the background, main contents and significance of the legislation of Hong Kong’s National Security Law in order to raise their awareness of national security and law-abidingness; primary and secondary schools in Hong Kong are required to raise the national flag and sing the national anthem when holding activities to celebrate New Year’s Day (1 January) and National Day (1 October). All sectors of the community believe that the above measures will help to rectify the situation in the education sector.

However, due to the deep-rooted problems, there is still a long way to go to solve the education problems in Hong Kong. In future, Hong Kong should strengthen education on the Basic Law and national conditions for young people, and “zero tolerance” for the dissemination of “Hong Kong independence” and advocacy of “black violence”. All sectors of society that care about Hong Kong’s next generation should also actively participate in the cause of caring for the healthy growth of young people, and work together to cut off the black hand that reaches out to education and students.

Comment:

This report focuses on the serious social problems in the “Letter to New Students” produced by The Chinese University of Hong Kong Students’ Union after the Hong Kong Repairs controversy, analyzes the consequences of its students’ involvement in violence, and finally, through the impact on students after the enactment of Hong Kong’s National Security Law, unites the power of the relevant government and various sectors of society to stop the “dark forces” from entering students and build a bright future for Hong Kong’s youth.

Reference(s):

http://www.xinhuanet.com/2020-08/24/c_1126406025.htm

Writer:Yazhou Xiong

Translator:Shuyi Ren

Editor:Shuyi Ren

世卫组织和儿基会发布未成年人戴口罩指南

关键词:未成年人,戴口罩

世界卫生组织和联合国儿童基金会21日联合针对未成年人戴口罩发布指导意见,建议凡是要求成人戴口罩的地方,12岁以上青少年也应该戴口罩。

这两家机构建议,在无法保证保持1米社交距离或身处新冠病毒传播高风险区域时,12岁以上青少年尤其应该戴口罩。

指导意见说,6岁至11岁儿童应该在新冠病毒广泛传播的地方戴口罩或在特殊环境中戴口罩,例如学校。

世卫组织和儿基会不建议5岁以下儿童戴口罩,原因是他们无法自己正确摘戴口罩。5岁以下儿童如果戴口罩,应该由成人经常在身边监护。家长应该留意幼儿对戴口罩的感受。

世卫组织和儿基会认为,无论属于哪个年龄段,只要孩子有发育障碍、身体残疾或其他可能影响戴口罩的健康状况,都不应该被强制戴口罩。

指导意见说,儿童在运动或参加体育活动时不应该被要求戴口罩,原因是“那样做可能影响呼吸”。指导意见强调应该注意保持与他人的距离、限制共同运动儿童的人数。

评论

儿童是疫情中需要重点保护的对象,无论哪个年龄段的儿童,都应该以正确的方式做好防护措施。世界卫生组织和联合国儿童基金会联合针对未成年人戴口罩发布的指导意见对不同年龄段的儿童、青少年如何防护做出了适当的规定,建议儿童、青少年戴口罩进行防护,有利于保护儿童青少年的身体健康,减少新冠病毒在儿童、青少年间的传播。同时世卫组织和儿基会也考虑到了儿童、青少年年龄段和健康状况的差异性,对5岁以下的儿童和健康状况不适合戴口罩的儿童做出了有别于其他未成年人的建议,体现了对未成年人健康的关爱。

原文链接:

http://m.news.cctv.com/2020/08/23/ARTIXASZPXhzPXpk04uCj36N200823.shtml

撰稿:洪文轩

翻译:丁琦

编辑:兰嘉颖

The World Health Organizatio and the UNICEF Issued Guidelines for Minors to Wear Masks

Key words: MinorsWearing masks

The World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF) issued guidelines on the wearing of masks by minors on the 21st, suggesting that teenagers over 12 years old should also wear masks where adults are required to wear masks.

These two agencies recommend that young people over 12 years old should wear masks especially when they are unable to maintain a 1-meter social distance or are in high-risk areas of coronavirus transmission.

Guidance suggests that children aged 6 to 11 should wear masks in areas where the coronavirus is widely spread or in special settings, such as schools.

WHO and UNICEF do not recommend wearing masks for children under five years old because they cannot properly remove masks by themselves. If children under 5 years old wear masks, they should be monitored by adults. Parents should pay attention to their children’s feelings about wearing masks.

WHO and UNICEF believe that, regardless of age, children should not be forced to wear masks as long as they have developmental disabilities, physical disabilities or other health conditions that may be affected by mask wearing.

Children should not be required to wear masks when exercising or participating in sport activities because ‘doing so may affect breathing,’ the guidelines said. The guidelines emphasize that attention should be paid to keeping distance from others and limiting the number of children who exercise together.

Comment

Children should be particularly tended to and protected in the epidemic. regardless of age group, protective measures should be taken in the right way. The World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF) jointly issued guidelines on how to protect children and adolescents of different ages. It is suggested that children and adolescents wear masks to protect their health and reduce the transmission of the coronavirus among children and adolescents. At the same time, WHO and UNICEF have also taken into account the differences in age groups and health status of children and adolescents. Specific advice are made to children under 5 years old and those whose health conditions are not suitable for wearing masks, these actions reflect care for the health of minors.

Reference(s): http://m.news.cctv.com/2020/08/23/ARTIXASZPXhzPXpk04uCj36N200823.shtml

Writer:Wenxuan Hong

Translator:Qi Ding

Editor:Jiaying Lan

【专题研究】

法律介入儿童家暴类案件后对于施暴者的法律后果

关键词:儿童  家暴  法律后果

摘要:本文主要依据现行法律从民事、行政和刑事三个角度介绍了实施家暴者将要面临的严重的法律责任和后果,根据有关真实案例对于这些法律责任进行了简要评述,旨在让更多人尤其是家暴实施者警醒,使其充分意识到这些法律后果不是轻易能够承受的。

对儿童的家庭暴力可以说是侵犯儿童权益案件中“长期、隐蔽、反复”等特征最明显的一类。近年来,随着政府和全社会对于儿童家暴危害不断加深认识以及对儿童身心健康有关权利的不断重视,《民法典》、《刑法》、《中华人民共和国反家庭暴力法》、《中华人民共和国未成年人保护法》等有关的司法解释、地方行政法规和与之配套的政策和制度不断完善,中国从预防、制止恢复、追踪反馈的全社会参与反家暴的体系正在建立。同时社会大部分人的共识是家庭暴力案件应该是以预防为主,重在于监护人自己形成正确的教育儿童方式,以期形成良好的监护关系,然而现实大量家暴案件在公安、法院等公共结构介入后才被及时制止。在全社会各方参与儿童保护的今天,相关法律发挥着不可替代而又及其重要的的作用,因此务有必要让更多人知道实施家暴可能带来的严酷的法律责任与后果。

一、现行法律下可能对于监护人产生的法律责任

很多正在实施家暴的父母或者其他监护人,他们并没有意识到自己行为所要承担的法律责任和后果,为了促使其法律意识的树立、警醒和教育,有必要对于家暴的有关责任加以阐述,显示这些严重的法律后果不是家长所希望和能够承受的。

  • 民事责任

父母作为儿童的法定监护人,前提是父母能够抚养子女,有利于儿童的成长。但是现实生活中总有一些案件中父母对子女的家暴已经明显过度。这些严重的家庭暴力案件中,侵权的监护人面临的最常见的法律责任是撤销监护人资格。剥夺家长监护的权利和资格是手段而非目的,其法律宗旨在于对严重侵害未成年人权益或者潜在可能侵害的父母进行警示和惩戒。根据《民法典》第36条或者《未成年人保护法》之规定的大约7种情形中任一情形出现后,很多法律主体包括民政部门的兜底责任可以申请,法院就要判决更换指定监护人,显然对于儿童严重的家庭暴力是完全满足撤销的情形的案件,有关法院基本都坚持做出了撤销判决或者裁定,自从2016年以来的多批最高人民法院的指导案例中,都有此类撤销监护人资格的指导案例。虽然有关规定要求谨慎严格决定是否撤销,但是面对严重侵害儿童合法权益的家暴案件,更换的监护人如果没有履行好监护义务,仍然要更换监护人。

家长被撤销法定监护人资格后,为了儿童健康成长和其家庭关系维持,法律规定了申请恢复的制度,虽然父母等监护人满足法定条件可以申请恢复,但是有关要求严格。根据民法典第38条,“被监护人的父母或者子女被人民法院撤销监护人资格后,除对被监护人实施故意犯罪的外,确有悔改表现的,经其申请,人民法院可以在尊重被监护人真实意愿的前提下,视情况恢复其监护人资格,人民法院指定的监护人与被监护人的监护关系同时终止[1]。”

《关于依法处理监护人侵害未成年人权益行为若干问题的意见》(以下简称《意见》)第三十八条规定,被撤销监护人资格的侵害人,自监护人资格被撤销之日至少3个月才可以书面申请恢复,并应当提交相关证据。”虽然这是为尽量减少撤销监护人资格数量,尽可能维护亲情关系,尊重未成年人的真实想法和意愿,以期儿童能够正常回归家庭。但是法院会对申请人的表现、申诉以及证据进行严格审查,征询儿童的真实意愿。同时,《意见》也对以下情形作了永久剥夺监护资格的规定:“(一)性侵害、出卖未成年人的;(二)虐待、遗弃未成年人六个月以上、多次遗弃未成年人,并且造成重伤以上严重后果的;(三)因监护侵害行为被判5年徒刑以上的[2]。”

此外,对于儿童的家暴也属于家庭暴力,除了一般的赔偿责任之外,家庭暴力也是诉讼离婚的法定事由之一。

  • 行政责任

未成年人保护法以及反家暴法已经明确规定,监护人实施家暴未达到刑事责任标准的,要依法承担行政责任,从最低的教育和告诫,到罚款和15日以下的行政拘留处罚教育措施均已明确规定。尤其注意在家暴法中的人身安全保护令制度,该法第34条规定,被申请人违反人身安全保护令,构成犯罪的,依法追究刑事责任;尚不构成犯罪的,人民法院应当给予训诫,可以根据情节轻重处以一千元以下罚款、十五日以下拘留[3]

今年来全国多个省市的地方政府也在不断按照立法法规定,不断完善地方反家暴和未成年人保护的有关规章制度。最近几年地方反家暴的立法条件不断成熟,越来越多的符合地方实际同时更加严格的规定。尤其是各省纷纷强化有关单位主体责任,比如吉林省反家暴条例规定“有关单位不得推诿、拖延处理家暴案件。任何个人或者团体都有权制止家暴”这对于实施家暴的监护人而言,其行为更高概率被有关机关追责。

  • 刑事责任

严重损害儿童权益的家暴行为可能构成故意伤害罪、故意杀人罪、虐待罪、遗弃罪等众多较为恶劣的犯罪。虽然虐待罪等为亲告罪,现实生活中也很少发生受害儿童亲自报案的情况,但是不妨碍这些恶劣行为定性为其他犯罪,尤其是家暴性质程度达到致使儿童受到重大伤害或者死亡的,侦查机关也会主动出击,严惩犯罪。

实际上,家暴非常容易导致儿童受到轻伤以上伤害。最常见的家暴行为比如扇耳光,如果严格追究责任,扇耳光极易导致耳膜穿孔,有关伤情鉴定明确规定,耳膜穿孔为轻伤,轻伤是故意伤害行为构成犯罪的法定入刑要求。此外,前文的《意见》明确规定,“对实施家庭暴力手段残忍、后果严重、动机卑劣、起因上有过错或者具有再犯情节的,应当酌情从重处罚。”那么家暴实施者在法定刑罚范围内,对具有从重处罚情节的犯罪人,比较有该种处罚情节的犯罪人,适用较重的刑种或较长的刑期。

在生活中很多家暴行为在法律介入后,家暴实施者往往同时面临刑事、民事或者行政责任中至少2类责任的组合。可以相信,随着中国反家暴立法的越来越完善,家暴实施者将会面临更为严重的法律处罚。同时我们也要注意到,民法典第37条明确规定依法负担被监护人抚养费、赡养费、扶养费的父母、子女、配偶等,被人民法院撤销监护人资格后,应当继续履行负担相关义务,这对于施暴者而言明显是得不偿失的,法律不会因为剥夺监护人资格同时免除施暴者的法定义务。

  • 由三类法律责任继而引发的不利影响

一方面,在面临行政处罚和刑事处罚后,施暴的成年人在工作生活中面临种种不利,工作入职、晋升、考核、职业资格考试,入党和申请优惠政策等均有明确规定在一定时间段之内不能有被行政处罚或者刑事处罚的记录,如果父母不能约束自己的言行,对其产生的不利影响是长期而又多方面的。

另外一方面,对于法定监护人的处罚可能会带来儿童的自责、内疚和压抑,这对于儿童是新的心理创伤,血缘关系无法改变和血浓于水的理念很深刻影响中国人,缺少父亲或者母亲对于孩子长期成长扔不利。那些因为家暴而家庭关系出现重大问题的家庭,虽然撤销的监护人资格是可以申请恢复的,但是度破损断裂的亲人关系是难以修复的,心灵的创伤与隔阂很在短时间之内很难消除。

法律处罚家暴施暴人在某种程度上是一种悲剧,任何人并不希望这些不利后果的发生,相反我们希望这些分析的内容如何有关法律被更过的家长尤其是正在实施暴家暴而没有引起重视的家长关注和反省,把更多的注意放到预防和教育上,以期减少家暴问题带来的种种不幸福。比法律保护更重要的是,家长教育儿童能力的培养、反家暴意识的培养和家暴危害认识能力的提升,这也是本评论的动机所在,希望种种严格的法律惩罚措施和后果能够让家暴施害者警醒。

撰稿:何俊成

翻译:Shirley Duan

编辑:丁心睿

The Legal Consequences for the Perpetrator following the Law Intervention into Child Domestic Violence Cases

Keywords: Children, Domestic violence, Legal consequences

Abstract: In accordance with the current laws, this article mainly introduces the serious legal responsibilities and consequences that perpetrators of domestic violence will face from civil, administrative and criminal perspectives. Based on relevant real cases, these legal responsibilities are briefly reviewed, aiming to make more people, especially domestic violence perpetrators, better alerted and aware that these legal consequences are not easily bearable.

Domestic violence against children can be seen as the most obvious type of “long-term, concealed and repetitive” cases in violation of children’s rights. In recent years, the government and the whole society increasingly have already deepened their understanding of the dangers of domestic violence to children and have continuously  attached more importance to the rights of children’s physical and mental health. As a result, the Civil Code, the Criminal Law, the Anti-Domestic Violence Law of the People’s Republic of China, the Law on the Protection of Minors and related judicial interpretations, local administrative regulations, supporting policies and systems have been continuously improved as well. Meanwhile, a system for the whole society to participate in anti-domestic violence ranging from prevention, suppression, restoration and tracking feedback is being established in China. At the same time, the social consensus of most people is that we should mainly focus on prevention of domestic violence, and forming correct ways of guardians to educate children in order to form a positive guardianship relationship. However, the truth is, a large number of domestic violence cases cannot be stopped in time until public security, the courts and other public structures have to intervene in. In modern society, relevant laws are playing an irreplaceable and extremely important role to protect children in different fields. Therefore, it is necessary to render more people fully aware of the severe legal responsibilities and consequences that may be brought about by domestic violence.

 1. Potential Legal Responsibilities for Guardians under Current Laws

 Many parents or other guardians are not fully aware of the legal responsibilities to domestic violence and consequences of their actions. In order to promote their legal awareness and make them more vigilant and educated, it is necessary to explain the relevant responsibilities of domestic violence, which are never what parents understand and can afford.

1.1 Civil Liability

It is wildly recognized that the prerequisite for being legal guardians of children is their ability to raise their children and create an favorable growth environment. However, in real life there are always some cases of excessive child abuse. In these serious domestic violence cases, the most common legal consequences faced by the infringing guardian is revoking their guardianship. The deprivation of parental guardianship rights and qualifications is served as an instrument but not the end, and its legal purpose is to warn and punish parents who seriously or potentially infringe the rights of minors. In case of seven circumstances prescribed by Article 36 of the Civil Code or the Law on the Protection of Minors, many legal subjects, including civil affairs departments, can apply to the court for revoking parents’ guardianship, and the court will decide if to replace the designated guardian. Obviously, serious domestic violence in children is a type of case that fully meets the conditions of revocation, thus the relevant courts have basically insisted on making revocation judgments or rulings. Since 2016, there have been such cases of revocation of guardianship in the guidance cases of the Supreme People’s Court. Although relevant regulations require wary and strict application on whether to revoke or not, when facing domestic violence cases that seriously infringe on the legitimate rights and interests of children, the substitute guardian must still be replaced if not being able to fulfill the duty of guardianship,.

For the healthy growth of children and the maintenance of their family relationships after their parents have been disqualified as legal guardians, a system was set by law for applying for restoration. Although parents and other guardians can apply for restoration if they meet legal requirements, the relevant requirements are strict. According to Article 38 of the Civil Code, “Where the ward’s parent or child shows true repentance after being disqualified from guardianship by the people’s court, except one having committed an intentional crime on the ward, the people’s court may, by respecting the ward’s true will and according to the circumstances, reinstate his or her guardianship upon his or her application, and the guardianship between the guardian designated by the people’s court and the ward shall terminate concurrently.”

Article 38 of the “the Opinions on Several Issues concerning the Handling in Accordance with the Law of the Infringement upon the Rights and Interests of Minors by Their Guardians (hereinafter referred to as the‘Opinions’)” stipulates that the infringer whose guardianship is revoked shall not be until at least 3 months from the date when the guardianship is revoked a written application for restoration can be made and relevant evidence should be submitted. The infringer who is disqualified from guardianship may apply in writing to the people’s court for resuming the qualification as the guardian and shall submit relevant evidence within the time period between three months and one year from the date of being disqualified to be the guardian. Although such provision is made for purpose of minimizing the number of revoked guardian qualifications , maintaining family relationships as much as possible, respecting the true thoughts and wishes of minors, and in hope of children returning to their families normally. The court will strictly review the applicant’s performance,  appeals and evidence, and consult the true wishes of the children. At the same time, the “Opinions” also makes permanent deprivation of guardianship in the following situations: “Where the applicant falls under any of the following circumstances, a judgment to resume the guardianship qualification of the applicant shall not be rendered in general:(1) sexually assaulting or selling the minor; (2) abusing or abandoning the minor for more than six months or abandoning the minor several times, which results in serious injury or more serious consequence; (3) being subject to the fixed-term imprisonment of five years or more serious criminal penalty due to the act of infringement in guardianship.”

In addition, domestic violence against children also belongs to domestic violence. In addition to general liability for compensation, domestic violence is also one of the legal reasons for divorce proceedings.

1.2 Administrative Responsibility

The Law on the Protection of Minors and the Law on Anti-domestic Violence have clearly stipulated that guardians who commit domestic violence and fail to reach the criminal liability standards shall bear administrative responsibility in accordance with the law, ranging from  education and warnings to fines and administrative detention punishments and education measures under 15 days. Particular attention should be paid to the personal safety protection order system under Anti-domestic Violence Law. Article 34 of the law stipulates that if the respondent violates the personal safety protection order and constitutes a crime, he shall be investigated for criminal responsibility according to law; ” Where the breach of a personal safety protection order by a respondent constitutes a crime, the respondent shall be subject to criminal liability in accordance with the law, otherwise a people’s court shall reprimand the respondent and impose on him/her to a fine of up to CNY1,000 and a detention of up to 15 days depending on the seriousness of the case. “

In the past year, local governments in many provinces and cities across the country have also continued to perfect local regulations and systems related to domestic violence and the protection of minors in accordance with the provisions of the Legislative Law. In recent years, as local anti-domestic violence legislation conditions continued to mature, more and more stricter regulations fitting into local conditions have been made. In particular, various provinces have strengthened the main responsibility of relevant units. For example, the Jilin Regulations on Anti-domestic Violence stipulates that ” The units concerned shall not prevaricate or delay the handling of domestic violence cases. Any individual or group has the right to stop domestic violence.” This is in terms of guardians who commit domestic violence. Their behavior is more likely to be held accountable by relevant agencies.

1.3 Criminal Responsibility

The domestic violence that seriously damages the rights and interests of children, may constitute the crime of intentional injury, intentional homicide, maltreatment, abandonment and many other crimes of vicious nature. Although the crime of maltreatment is a crime handled only upon complaint, and child victims seldom report the crime in person in real life, it does not prevent these evil behaviors from being classified as other crimes, especially if the degree of domestic violence reaches such a degree that children are seriously injured or die, the investigative organization will also take the initiative to severely punish the crime.

In fact, it is very easy for children to suffer minor or even more serious injuries. The most common domestic violence is slapping ,for example. If the responsibility is strictly investigated, because of the fact that slapping can easily lead to perforation of the eardrum, that perforation of the eardrum is a minor injury according to the injury evaluation. Such behavior causing minor injury can constitute a crime. In addition, the aforementioned Opinions clearly stipulate that “If a defendant commits domestic violence by cruel means or with serious consequences, or if the defendant commits domestic violence based on despicable motives, or if the defendant commits domestic violence for a long time or multiple times, the defendant may be given a severer punishment as appropriate.” Then the perpetrator of domestic violence shall, within the scope of legal punishment, apply to a heavier punishment or a longer term of imprisonment

When domestic violence happen, the perpetrators of domestic violence often face a combination of at least two types of legal liabilities among criminal, civil or administrative liabilities at the same time. It is believed that as China’s anti-domestic violence legislation become increasingly improved, perpetrators of domestic violence will be subject to more severe legal penalties. Meanwhile, we should also note that,  Article 37 of the Civil Code ,which clearly stipulates that ” For parents, children and spouses who bear the upbringing payment, alimony payment or maintenance fee for the ward, their obligation in regard to such payment or fee shall continue after they have been disqualified by a people’s court as guardian.” For the perpetrator, it is obvious that the game is not worth the candle. The law will not deprive the guardian from the legal obligation of the perpetrator. this is obviously not worth the cost , and the law does not remove the person from legal obligations just because one is deprived of guardianship.

2. Adverse effects arising from three types of legal liabilities

On the one hand, with the administrative punishment and criminal penalties, adults commiting violent beahaviour will face much trouble in their career, including job recruitment, promotion, assessment, the professional qualification examination, admission into the party and application for preferential policies, beacause it is required that within a certain period of time they can’t has a record of the administrative punishment or criminal penalties. Therefore, if parents cannot control their own words and behaviour, the consequent adverse impact will remain for a long term and in many aspects.

On the other hand, the punishment for legal guardians may bring about children’s self-accusation, guilt and depression, which may cause a new psychological trauma for children. The kinship cannot be changed and the idea that blood is thicker than water has a profound impact in Chinese culture. The lack of a father or a mother is adverse to the long-term growth of children. For those families with serious problems in the family relationship caused by domestic violence, although the revoked guardianship status can be applied for restoration, the damaged and fractured family relationship is difficult to repair and it is very difficult to restore from the trauma and estrangement in a short time.

Punishment by law for the reason of domestic abuse is to some extent a kind of tragedy, the adverse consequence of which is something nobody wants. Instead, in order to reduce the misfortune caused by such acts,we hope that the above analysis can attract more attention to prevention,education and reflection on these things from parents,especially for those who are committing domestic violence. Something more important than legal protection is the cultivation of parents’ ability to educate their children, the development of their awareness of anti-domestic violence and the enhancement of their recognition of the dangers caused by domestic violence. This is also the motivation of this review. It is also hoped that all kinds of severe legal punishment measures and consequences can serve as a reminder for the perpetrators of domestic violence.

Writer: Juncheng He

Translator: Shirley Duan

Editor:Xinrui Ding

刑事责任年龄问题讨论

关键词:未成年人犯罪,刑事司法政策,刑事责任年龄

一、问题的缘起:未成年人犯罪低龄化趋势

2020年8月10日下午,大连13岁男孩蔡某某杀害10岁女童案民事诉讼一审宣判,法院判决蔡某某父母于本判决生效之日起十日内,在辽宁省级平面媒体上向原告母亲及家人公开赔礼道歉,并赔偿128万余元。该案发生在2019年10月20日,当日10岁的受害人被同小区13岁男孩蔡某某骗至家中。蔡某某欲行不轨之事,遭到受害人拒绝后,蔡某某将其杀害并抛尸灌木丛。案发时,蔡某某还有两个多月才达到法定刑事责任年龄,因此警方依法不予追究其刑事责任,对其进行3年收容教养。[[4]]

近年来,越来越多未成年人恶劣犯罪事件进入公众视野之中。2018年12月,湖南益阳沅江市泗湖山镇发生一起杀人案,12岁的吴某持刀将34岁的亲生母亲杀害。2018年3月,湖北孝感晓彤在放学途中,遭人持刀暴力劫持两个小时,其间遭强奸威胁,被脱光衣服,身体多处被割伤。而由于加害者不满14岁,当地派出所对此事不予立案,加害者未承担刑事责任。今年5月,陕西蓝田县一小学女生在校内遭4名男生侵害。蓝田县公安局出具的一份不予立案通知书显示,由于4名犯罪嫌疑人均未满14岁,故不追究刑事责任。[[5]]

犯罪低龄化的趋势催生了降低刑事责任年龄的讨论。根据我国《刑法》第17条规定,不满14岁的人犯罪,不负刑事责任。因此,不满十四周岁的人不管实施何种法益侵害行为,都不会受到刑事处罚,而只会由监护人或相关政府部门收容教养。其实,1997年修订《刑法》时,有关“是否应该降低刑事责任年龄”的争论就已经产生。而面对当今愈加严峻的低龄化犯罪,有关此问题的争论亦愈加高涨。本文拟从域外经验、立法理念、司法实践等层面,展开有关刑事责任年龄的讨论。

二、刑事责任年龄的域外立法经验

关于刑事责任年龄的规定,各国差异很大。立法的差异归根于各国的历史、文化、政治、经济以及法律传统等方面的迥异。例如,在18岁以下未成年人总数超过一千万人的国家或地区中,将年龄定为刑事责任年7岁的,有印度、巴基斯坦、新加坡、南非等11个国家;定为8~10岁的,则包括英国、乌克兰、埃塞俄比亚等10个国家;定为12~13岁的,有韩国、法国、波兰等7个国家;定为14岁的有6个国家;定为14岁以上的,有埃及、阿尔及利亚等5个国家。[[6]]此外,有的国家对男性、女性规定了不同的刑事责任年龄,或者是在实践中依据不同宗教、地理区域采取不同的刑事责任年龄标准。[[7]]

在判例法国家,刑事责任年龄的规定并非判断是否应该对未成年人进行刑事处罚的绝对标准,而是辅以“推定规则”。例如,美国有37个州没有规定刑事责任的下限。在这37个州中,基本的判断方法是:(1)未满7岁的未成年人,不负法律责任;(2)对于7-12岁的未成年人,推定其没有犯罪的能力,除非控方能够提供相反证明。英国也具有类似的“推定规则”:(1)未满10岁的未成年人,不负刑事责任;(2)对于10-14岁儿童,推定为无实施犯罪行为的能力,除非有相反的证据。

总结而言,各国刑事责任年龄高低不一,模式不同。这是各国迥异的文化和社会现实决定的。而且,刑事责任年龄规定本身可能不能作为判断加害人是否应承担刑事责任的绝对标准。例如,英国的最低刑事责任年龄虽然较低(10岁),但存在“推定规则”,推定14岁以下的未成年人没有犯罪能力。

三、刑事责任年龄与犯罪率

如果降低刑事责任年龄能有效抑制犯罪低龄化的趋势,那么降低刑事责任年龄就有一定的必要性。然而,实证数据并不支持两者之间具有因果关系。在美国,青少年最低刑事责任年龄并没有降低,但青少年犯罪率有所下降。截至1998年的统计数据表明,青少年凶杀案的案发率处在1987以来的最低点,比1993年高峰时的案发率下降了52%。1994年至1998年间,15至17岁青少年犯谋杀、抢劫、强奸等严重暴力犯罪案件的案发率下降了32%,14岁或以下年龄段的严重暴力犯罪案件的案发率下降了27%。因此,青少年暴力犯罪低龄化趋势并不明显。连续15年的数据统计表明,10至12岁年龄段犯暴力型犯罪的青少年在所有因暴力型犯罪被逮捕的青少年中的比例较为稳定地保持在8%左右。虽然在一些个案中涉嫌暴力犯罪的少年年龄很小,引起了媒体的高度关注,但这种情形并不具有代表性。[8]

实际上,相比起刑事责任年龄,青少年犯罪率和司法与社会干预体系的完善程度更具相关性。英国并未对其刑事责任年龄做出调整,但统计数字显示,近年来,在国内犯罪率呈逐年上升的情况下,其青少年犯罪率却没有发生明显的变化,甚至有降低的趋势。专家指出,这一现象与英国自2000年4月以来对青少年审判工作方面所进行的改革以及采取适宜的国家干预措施是有着极为密切的联系的。直接启动并领导了这次改革行动的是新近组建的向政府机构提供咨询与建议的青少年审判委员会,以及154个青少年犯罪研究机构和警察的代表,由他们通力合作,共同寻找治理青少年犯罪现象的对策及有效的干预措施,并取得了极为明显的成效。[9]

  • 中国的刑事责任年龄问题

在第十三届全国人大三次会议上,全国人大代表、平南县平南镇第三中学副校长潘萍有关“对未满14周岁未成年人违法问题降低惩戒(刑事)责任年龄”的提议引发热议。在此次热议的背后,不仅反映了近年来未成年人犯罪问题激增的社会现状,更是进一步引发全国人民对于未成年人刑事责任年龄起点问题的讨论。从立法角度出发,目前我国的最低刑事责任年龄(14周岁)作为理论实践的结合体,具有着难以磨灭的事实价值与理论依据,具体理由可总结为下列三点:

1.降低刑事责任年龄违背我国立法理念与未成年人保护原则。未成年人刑事责任制度的构建需要考虑的不仅仅是行为人的主观方面,即未成年行为人的辨认能力等,还需要兼顾保护未成年人的基本原则。自古至今,我国对未成年人犯罪所采用的理念往往是以教化为主,惩罚为辅。故仅以民事行为能力为要件对刑事责任年龄进行修改,则不免会与我国刑事责任能力以及刑罚的真正目的相悖,同时亦会违反我国有关保护未成年人的相关原则。

2.青少年犯罪的原因往往趋于综合化,降低刑事责任年龄易导致对其他责任的忽视。未成年人由于年龄较小、是非辨别能力较弱,其行为举止往往会受到多方因素的影响。根据调查显示,青少年犯罪往往与不当的家庭教育、学校教育等有着密不可分的关系。未成年人正处于生理心理发育成长的关键时期,带有瑕疵的家庭与学校教育必然会导致其正向思想、性格发展的缺失。故未成年人犯罪这一问题不能仅仅归结于未成年人自身,而要与家庭学校,甚至整个社会都密切结合起来进行综合分析。若盲目降低刑事责任年龄,不仅会使误入歧途的未成年人无法重新融入社会,还会从根源上忽略造成此问题的其他原因,致使未成年人犯罪问题愈发得不到根源性的解决。

3.降低刑事责任年龄不能必然达成理想效果。一般性质的未成年人犯罪往往与成年人犯罪并不相同,从主观方面来看,其犯罪行为的主观恶性往往并不明显,甚至有些犯罪根本不存在反社会的主观恶意,而是未成年在多重因素影响下的错误行为。因此,若仅以当今未成年人犯罪率居高不下而降低刑事责任年龄,则会大大减少未成年人改正错误的机会,导致其犯罪的根源性问题依旧无法得到解决,从而使得原本维持在平衡点上的未成年人犯罪惩罚措施面临失衡。

撰稿:李琳琳 王金菊 薛智怡

翻译:金琦 郭金莹

编辑:刘利柯

Discussion on The Age of Criminal Responsibility

Key words: Juvenile delinquency, Criminal justice policy, Age of criminal responsibility

1. The Origin of the Issue: The young age trend in crimes

On the afternoon of August 10, 2020, the first instance of civil action was pronounced in the case of a 13-year-old boy in Dalian, whose last name was Cai, killing a 10-year-old girl. His mother and family members are asked to apologize in provincial publications and compensate for more than 1.28 million yuan. The case occurred on October 20, 2019 when the 10-year-old victim was deceived to Cai’s home. Cai was planning to rape the girl. However, after being rejected by the victim, Cai killed her and threw her body into the bushes. At the time of this case, Cai had more than two months to reach the age of legal criminal responsibility. Therefore, the police would not pursue him for criminal responsibility in accordance with the law, and he was kept in custody for three years.[10]

In recent years, the incidence of juvenile delinquency is increasing. In December 2018, a homicide occurred in Sihushan Town, Yuanjiang City, Yiyang, Hunan Province. A 12-year-old teenager named Wu killed his 34-year-old mother. In March 2018, Xiaotong was violently kidnapped for two hours on her way from school in Xiaogan, Hubei Province. She was threatened with being raped, and was stripped naked. At the same time, her body suffered multiple cuts. As a result of the perpetrator being under 14 years old, the local police office refused to file a case for this matter, and the perpetrator did not have to bear criminal responsibility. In May of this year, a girl in a primary school in Lantian County, Shaanxi Province, was assaulted by four boys at school. A notice of not filing a case issued by the Lantian County Public Security Bureau shows that since the four criminal suspects are all under 14 years old, no criminal responsibility will be pursued.[11]

The young age trend in crimes has spawned discussions about lowering the age of criminal responsibility. According to Article 17 of Criminal Law of People’s Republic of China, persons under the age of 14 who commit crimes are not liable for criminal responsibility. Therefore, a person under the age of fourteen will not be subject to criminal penalties, regardless of any act of infringement of legal interests, but will only be taken in by guardians or relevant government departments. In fact, when the “Criminal Law” was revised in 1997, the debate about “whether the age of criminal responsibility should be lowered” had already arisen. In the face of today’s increasingly severe young-age crimes, controversy over this issue is also on the rise. This article intends to discuss the age of criminal responsibility from the perspectives of foreign experience, legislative jurisprudence, and judicial practice.

2. Experience in Foreign Legislation of the Age of Criminal Responsibility

In terms of the age of criminal responsibility, there are great differences among countries. These differences are related to the actual conditions of various countries, including countries’ history, culture, politics, economy, and legal traditions. For example, in countries or regions where the total number of minors under the age of 18 exceeds 10 million, 11 countries set the age of criminal responsibility as 7 years old including India, Pakistan, Singapore, and South Africa. Those countries setting as 8-10 years old include the United Kingdom, Ukraine, Ethiopia, etc. 7 countries including South Korea, France and Poland have set the age as 12 to 13 years old. There are 6 countries setting the age as 14. And 5 countries like Egypt and Algeria have practiced it as over 14 years old.[12] In addition, some countries set different ages of criminal responsibility for men and women, or in practice adopt different ages of criminal responsibility based on different religions and geographic regions.[13]

In common law countries, the age of criminal responsibility is not an absolute standard for judging whether minors should be criminally punished, but is supplemented by “presumption rules”. For example, there are 37 states in the United States that do not stipulate a lower limit of criminal responsibility. In the 37 states, the basic methods of judgment are: (1) Minors under 7 years old are not legally responsible; (2) For 7-12 years old minors, it is presumed that they are not capable of committing crimes. Unless the prosecution can provide proof to the contrary. The United Kingdom also has similar “presumption rules”: (1) Minors under 10 years old are not criminally responsible; (2) For children aged 10-14, they are presumed to be incapable of committing crimes unless there is a contrary evidence.

In conclusion, the age of criminal responsibility varies from country to country, which is determined by the different cultural and social realities of each country. Moreover, the age of criminal responsibility may not provide significant reference by itself. For example, although the minimum age of criminal responsibility in the United Kingdom is relatively low (10 years old), there are “presumption rules” existed that presume that minors under the age of 14 have no capacity of committing crimes.

3. Age of Criminal Responsibility and Crime Rate

If lowering the age of criminal responsibility can effectively curb the young age trend in violent crimes, then it is necessary to reduce the age of criminal responsibility. However, empirical data does not support a causal relationship between the two. In the United States, the age of criminal liability was not adjusted lower, but the rate of juvenile crime has declined. Statistics up to 1998 show that the incidence of teenage homicides is at the lowest point since 1987, a 52% drop from the peak incidence in 1993. Between 1994 and 1998, the incidence of serious violent crimes involving murder, robbery, and rape among 15 to 17-year-old teenagers dropped by 32%, and the incidence of serious violent crimes among those aged 14 or younger dropped by 27% . Therefore, the trend of youth violent crime is not obvious. Statistics for 15 years show that the proportion of teenagers who commit violent crimes in the age group of 10 to 12 among all teenagers arrested for violent crimes has held at about 8% steadily. Although in some cases the teenagers suspected of violent crimes were very young and attracted great attention from the media, this situation is not representative.[14]

Actually, the juvenile crime rate was more related to the completeness of judicial and social intervention system, rather than to the age of criminal liability. The UK have not adjusted its criminal liability age, but statistics shows that in recent years, while the domestic crime rate has been increasing year by year, the juvenile delinquency rate has not changed significantly, and even has a declining trend. Experts point out that this phenomenon is extremely closely related to the reformation of the juvenile trial in the UK since April 2000 and the adoption of reasonable interventions. The principal parts directly initiating and leading this reformation operation are the newly formed Juvenile Judicial Committee, which concentrates in providing counsel and advice to government agencies, and 154 representatives from institutions and police. They worked together to find countermeasures and targeted interventions to control juvenile delinquency, and it has achieved extremely obvious results.[15]

4.The age of criminal responsibility in China

At the Third Session of the Thirteenth National People’s Congress of the People’s Republic of China, Pan Ping, vice-president of the Third Middle School in Pingnan town, Pingnan city and a member of the National People’s Congress, proposed to “lower the age of (criminal) punishment responsibility for minors under the age of 14 who violate the penal code”, which provoked stinging discussion in society. This hot discussion not only reflects the social scene of the incredible increasing of juvenile delinquency recently, but also further triggers the discussion of the age of criminal responsibility. From a legislative perspective, the current age of criminal responsibility (14 years old), as a combination of academic and practice, has undoubted practical value and academical basis. The specific reasons can be summarized as the following three points:

  1. Lowering the age of criminal responsibility violates our legislative ideas and the principle of protection of minors. The regulation of the age of criminal responsibility needs to consider not only the subjective aspects of the minors, including insight etc., but also the fundamental principles of protecting minors. Modifying the age of criminal responsibility by considering only the capacity for civil conduct will inevitably run counter the true purpose of China criminal capacity regulations and criminal penalty systems. It will also violate China’s legislative principles about protecting minors.
  2. The causes of juvenile delinquency are complicated, and lowering the age of criminal responsibility might easily lead to the neglect of responsibilities of other aspects. Due to their younger age and weaker ability to judge right from wrong, the behavior of minors is often affected by many factors. According to surveys, the causes of juvenile delinquency are often closely related to improper family education and school education. Minors are in a vital period of physical and psychological development, and flawed family and school education will undoubtedly lead to the lack of positive thinking and character development. Therefore, the problem of juvenile delinquency cannot be analyzed only from the minors themselves, but must be closely integrated with the home, school and even the entire society for comprehensive analysis. If the age of criminal responsibility is lowered blindly, it will not only prevent juvenile delinquents from reintegrating into society, but also ignore other causes of this problem, making the problem of juvenile delinquency cannot be solved at the root.
  3. Lowering the age of criminal responsibility cannot absolutely achieve the desired result. Generally, minor crimes are not the same as adult crimes. For example, considering of mental fault, their antisocial subjective viciousness is often slight. Some criminals have no intentions at all, minors do wrongful act under the influence of multiple factors. Therefore, if the age of criminal responsibility is lowered only with the current high rate of juvenile delinquency, it will greatly reduce the possibility of juveniles to be gave a second chance to correct their mistakes. Because of this, the core problem of juvenile delinquency cannot be addressed, and it even makes the punishment measures for youth offender, originally maintaining at a balanced point, face an imbalance.

Writer:Linlin Li, Jinju Wang, Zhiyi Xue

Translator:Qi Jin, Jinying Guo

Editor:Like Liu

“Global Snapshots on Child Law” is initiated by Zhicheng Public Interest Law. We hope to unite global volunteers who are passionate about the cause of public interests and build the most updated, timely and genuine information sharing platform for child protection worldly.

筹备与内容审核:

石纯毓,戴允中,陈欣怡

技术支持:

陈强,陈惠昀,袁子淇,任书仪,张钧宁,庞静,袁倩华,朱宇飞,成颖杰,罗湘玥,刘芸含,冯馨田,王小茉,薛志奇


[1] 全国人大网:《中华人民共和国民法典》,National People’s Congress Network: “Civil Code of the People’s Republic of China”

http://www.npc.gov.cn/npc/c30834/202006/75ba6483b8344591abd07917e1d25cc8.shtml,2020年8月6日.

[2]最高人民法院 :《关于依法处理监护人侵害未成年人权益行为若干问题的意见》Supreme People’s Court: the Opinions on Several Issues concerning the Handling in Accordance with the Law of the Infringement upon the Rights and Interests of Minors by Their Guardians http://www.mca.gov.cn/article/zwgk/fvfg/shsw/201412/20141200746952.shtml,2020年8月7日. August 7, 2020.

[3]全国人大网:《中华人民公共过反家暴法》National People’s Congress Network: Anti-domestic Violence Law http://www.npc.gov.cn/zgrdw/npc/lfzt/rlyw/2015-09/08/content_1946280.htm,2020年8月7日

[4] 中国经济网. “10岁女孩被13岁男孩杀害案”家属:希望凶手到女儿遗体前道歉https://baijiahao.baidu.com/s?id=1674787853921353626&wfr=spider&for=pc, 最后访问:2020年8月13日星期四

[5] 山西晚报. 小学女生遭4名男生侵害嫌犯未满14岁未立案律师:监护人应当赔偿https://baijiahao.baidu.com/s?id=1668735250925701977&wfr=spider&for=pc,最后访问:2020年8月13日星期四

[6] 中国日报. “校园暴力连年上升 最高检:降低刑责年龄需论证“

http://cnews.chinadaily.com.cn/2016-05/28/content_25507279_2.htm, 最后访问:2020年8月14日星期五

[7] Child Rights International Network: Minimum ages of criminal responsibility in Asia. https://archive.crin.org/en/home/ages/asia.html

[8] 汤继荣:《美国少年犯罪与少年司法现状》,载《青少年犯罪问题》2003年第1期

[9] 梁栋:《英 国 青 少 年 犯 罪 的 国 家 干 预 措 施 简 介》,载《青少年研究》2003年第3期

[10] 中国经济网. “10岁女孩被13岁男孩杀害案”家属:希望凶手到女儿遗体前道歉https://baijiahao.baidu.com/s?id=1674787853921353626&wfr=spider&for=pc, 最后访问:2020年8月13日星期四

[11] 山西晚报. 小学女生遭4名男生侵害嫌犯未满14岁未立案律师:监护人应当赔偿https://baijiahao.baidu.com/s?id=1668735250925701977&wfr=spider&for=pc,最后访问:2020年8月13日星期四

[12] 中国日报. “校园暴力连年上升 最高检:降低刑责年龄需论证“

http://cnews.chinadaily.com.cn/2016-05/28/content_25507279_2.htm, 最后访问:2020年8月14日星期五

[13] Child Rights International Network: Minimum ages of criminal responsibility in Asia. https://archive.crin.org/en/home/ages/asia.html

[14]汤继荣 ,《美国少年犯罪与少年司法现状》,载《青少年犯罪问题》2003年第1期。

[15] 梁栋:《英 国 青 少 年 犯 罪 的 国 家 干 预 措 施 简 介》,载《青少年研究》2003年第3期。

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