降低刑事责任年龄的限制与保障

Limitations and Safeguarding Measures of Reducing the Age of Assuming Criminal Liability

随着不满14周岁未成年人暴力触法事件的增多,社会公众对于此类案件的处置争议不断,理论界更是展开了争鸣,涌现出了“维持论”“降低论”“补足说”三种观点,这三种观点均存在不足之处。维持现状、不作任何改变肯定是不行的,因为其既不利于社会稳定,也不利于对低龄未成年人实施严重危害社会行为的扼制,不能达成刑法一般预防和特殊预防之目的。降低刑事责任年龄是大势所趋。《刑法修正案(十一)》正确回应了这一社会现实需求。但是,如何正确理解和贯彻执行降低刑事责任年龄的实体性限制与程序性保障,兼顾打击犯罪和保障人权,实现立法者的立法意图,仍是我们面临的一大挑战,尚有许多细节需要讨论。同时,我们应借助《刑法修正案(十一)》所提供的新的制度性空间,完善保安处分制度,对不予追究刑事责任的触法未成年人加强管教,避免放任自流以致其再危害社会。

With the increasing number of violent crimes committed by the minors under the age of 14,controversies on the disposal of such cases can be heard among the public and the theoretical and academic circles have started to study and discuss it.Three different viewpoints have thus emerged,known as"maintaining the age of assuming criminal liability as prescribed","reducing the age of assuming criminal liability to 14"and"supplementing necessary provisions for the age of assuming criminal liability"respectively,and yet each one of them has its own limitations.It will certainly do no good to maintain the age of assuming criminal liability as prescribed in that it is neither conducive to the social stability and the suppression of minors’violate conducts,nor helpful to achieve the purpose of general prevention and special prevention according to the criminal law.It is the general trend to reduce the age of assuming criminal liability to 14,and the issue of The Amendment(XI)to the Criminal Law of the People’s Republic of China has responded to the social demand.However,we are confronted with a big challenge as to how to correctly understand and implement the substantive restrictions and procedural safeguards of reducing the age of assuming criminal liability,to combat crimes and protect human rights at the same time,thus realizing the legislative intentions.Dozens of details should be discussed though.Meanwhile,we should make use of the new institutional provisions provided by The Amendment(XI)to the Criminal Law of the People’s Republic of China to improve the security measures and disciplinary systems.By intensifying the disciplinary measures and actions against the minors who commit crimes but assume no criminal liability,we will be able to prevent them from committing crimes again.