(June 9, 2021) On June 1, 2021, a revised version of China’s Juvenile Delinquency Prevention Law entered into effect. (Juvenile Delinquency Prevention Law (official gazette version), revised by National People’s Congress Standing Committee (NPCSC), Dec. 26, 2020, English translation by NPCSC.) The revision abolished the controversial “custody and instruction” for delinquent juveniles—a system started in 1952 that has been criticized for depriving individuals of their liberty without due process—and replaced it with the new “special correctional education.”
According to the revised law, minors engaged in serious misbehavior may, under certain circumstances, be sent to special schools to receive special education. (Art. 44.) Such special education will be under the national education system, and the State Council will formulate detailed measures on the special schools and special education. (Art. 6.)
There are two categories of “serious misbehaviors”: (1) conduct that is proscribed in the Criminal Law for which certain minors are not subject to criminal punishment because they are under the statutory age of criminal responsibility, and (2) other behaviors specified by the Juvenile Delinquency Prevention Law that “seriously endanger the society.” (Art. 38.)
According to the revised law, minors who engage in the first category of serious misbehaviors are subject to special correctional education. Special correctional education is to be conducted at a special location within a special school. The location is subject to “closed-loop management,” where the public security department (police) and justice department are responsible for the correction of the minors, and the government education department is responsible for their education. (Art. 45.) Under article 38 of the previous law (English translation), minors who were not subject to criminal punishments because they had not reached the age of 16 would be subject to “custody and instruction” by the government.
The decision to subject minors to special education or special correctional education is to be jointly made by the education department and the police. (Arts. 44, 45.) The law also allows the parents, other guardians, or schools of minors who have engaged in serious misbehaviors to apply to the education department to send the minors to special schools where they can receive special education. In these cases, the decision will be made by the education department only. (Art. 43.) All decisions to send minors to special schools must be approved by the special education guidance committee, which is established by local government at the county level or above. (Art. 6.)
Under China’s Criminal Law, the statutory age of criminal responsibility is 16, while those between 14 and 16 also bear criminal responsibility if they commit certain crimes. The most recent amendment to the Criminal Law, Amendment XI, further lowered the age to 12 in cases where the minor commits intentional homicide or intentional assault that results in death, or employs “especially cruel means” in an assault that causes serious injury or disability. Amendment XI to the Criminal Law—adopted by the NPCSC on the same day as the revised Juvenile Delinquency Prevention Law—also revised article 17 of the Criminal Law to replace “custody and instruction” with “special correctional education.”