Sixth meeting of the study group on German and Chinese law (October 18th, 2007)

Presentation: "Legal and institutional protection of minors in the judicial process in China" 

-Berrit Roth-

On the 18th and 19th of October, 2007, the city of Freiburg hosted a delegation of judges from Shanghai, which, having organized a chorus, performed at the concert hall of Freiburg, singing traditional Chinese, as well as, Western pieces of music. Apart from this musical cultural exchange, the Chair for East Asian Law at the University of Freiburg was able to persuade Mr. Qi, the head of the judges' delegation and vice president of the High People's Court of Shanghai to hold a presentation on the Chamber for legal proceedings involving minors, in existance since 1984.

Shanghai was the first city of China to introduce such a Chamber, which was originally designed to deal with juvenile delinquency proceedings. In the meantime, civil cases and family litigation are also accepted by these chambers. However, these still do not represent their central areas of activity.

According to Chinese juvenile criminal law, criminal responsibility for certain crimes depends on the age of the perpetrator. If the latter has not yet attained 14 years of age, the crime is, as a rule, not punishable. And in the period between 14 and 16 years of age, juvenile delinquents are also only criminally liable for so-called extremely serious offences, such as homicide, robbery, drug trafficking, and rape. In addition, juveniles of this age can receive neither a life sentence, nor a death penalty sentence. Having attained 16 years of age, a person is formally considered fully criminally responsible. However, while under 18 a life-long prison sentence is only possible in the most serious of cases, and the death penalty remains excluded.

In 1984 a group of judges was formed for the first time to deal primarily with juvenile delinquency. 15 years later, in 1999, four courts in Shanghai established special chambers for juvenile criminal proceedings, and in 2006 the Higher Regional Courts, as well, received separate juvenile criminal chambers.

The necessity of such juvenile criminal chambers, that, apart from fair and reasonable punishment, are mainly concerned with the interests of juveniales,  is demonstrated by the following statistics. In the year 2006, the courts of the city of Shanghai sentenced 2449 juveniles to penalties of imprisonment. Around 60% were sentenced to less than 6 months of imprisonment, the rest received sentences of one to two years. In comparison to the previous year, this meant an increase of around 17,5%. Mr. Qi pointed out that, firstly, this was a high number of juvenile delinquents, that, secondly, most of these sentenced juvenile delinquents were not originally from Shanghai, and that more than three quarters of crimes had been committed together by several minors.

At the latest since 1984, the "principle of education and correction" is applied to cases of juvenile delinquency. To implement this principle, judicial proceedings involving minors are closed to the general public. In addition, legal family members of the minor and his lawyer must be present during the proceedings. Frequently teachers of the minor are also summoned to attend. If an adult and a minor are both accused of a crime committed together, the court attempts to deal with the juvenile separately. Even the seeting arrangement in court is modified for juvenile proceedings: tables and chairs are arranged in the form of a roundtable to create a friendly atmosphere and alleviate the fears or anxieties of juveniles. In addition, the judge takes the time before the start of the judicial proceedings to meet with the juvenile and explain the proceedings and applicable regulations to him/her. In the course of the trial, the judges are to take, not only the crime committed and faults of the minor, but also his virtues into consideration.

To prevent relapses into criminal behavior, punishment should be avoided as often as possible, and juveniles are placed under the supervision of their community. In the meantime the court remains in contact with the juveniles to monitor their future lives and their reintegration into society. If punishment is unavoidable, a juvenile delinquent in China can, as is often the case in Germany, be sentenced to do community service. To this end, the minors are sent to institutions, in  which they also receive both education and military training. Statistics show that, indeed, only 20% of these juveniles relapse into criminal activity.

After his presentation, Mr. Qi took the time to address numerous questions posed by the participants of the study group. Among other things he explained the Chinese education and instruction of judges. Aspiring judges in China must complete a university law degree and a subsequent training period of around six years at court. This is followed by a special course at a so-called instruction center for judges, that aims to familiarize the candidates with new laws, trial techniques and other elective subjects. Courses and lectures on foreign legal systems, especially American and Japanese, but also German law, are also offered. This course, which usually takes around three to five months can also be completed as an intensive course within around one month. Before, finally becoming judge, this is followed by a further year of training at court.

Another question concerned the position of the courts of Shanghai regarding the death penalty. Mr. Qi explained that, at this time, history and tradition prevent the death penalty from being abolished. However, he stressed that this legal instrument must be used with great caution, since the Chinese legal system also recognizes the principle "in dubio pro reo" - " innocent until proven guilty". Therefore, he explained, the Supreme People's Court has withdrawn the right to review and approve the death sentence, which has lead to a reduction of executions of around 70% in 2007, as compared to previous years. And, as he stated, this development is not wholly attributable to foreign pressure. Chinese society, itself, is also increasingly changing its stance concerning the death penalty.

The dean of the legal faculty of the Albert-Ludwigs-University Freiburg, Mr. Perron, welcomes Mr. Qi. Gifts are exchanged. (above)

A judges' gavel made of jade. The picture on the gift bag behind it shows the court of Shanghai. (below)

Mr. Qi traveled to Freiburg not only as a guest speaker, but also as the director of a Chinese judges' choir which performed on the 18th and 19th of October in the historic market hall, as well as, the concert hall.