未成年人双向保护的法律规制困境及其完善

Dilemma of Legal Regulation of Two-Way Protection of Minors and Its Improvement

双向保护是我国未成年人综合司法保护的基本原则之一,该原则在我国强调既要保护未成年被害人权益,也要保护未成年犯罪嫌疑人、被告人的合法权益,其设置初衷是为了追求未成年人个人利益与社会公共利益的平衡。近年来,低龄儿童犯罪的恶性案件屡见不鲜,犯罪手段之恶劣令人触目惊心,我国对未成年人的双向保护工作似乎遭遇“瓶颈”。司法实践中强调保护罪错未成年人的合法权益,而对未成年被害人权益的保护则显得不足,对未成年人个人利益与社会公共利益的保护存在失衡现象。在法律上,一方面,对罪错未成年人的矫正存在行政、刑事责任年龄规定不协调、未成年人轻缓化刑事责任承担方式欠缺的问题;另一方面,对未成年被害人的保护存在校园侵害学校责任模糊、未成年人精神损害的差异性未被重视的困境。为此,本文提出了在罪错未成年人的责任承担方面下调行政责任年龄、创新未成年人刑事责任承担方式的立法建议,与此同时,在未成年被害人的保护方面,提出应完善校园侵害各方责任的认定以及未成年人精神损害赔偿重构的对策。

Two-way protection is one of the basic principles of comprehensive judicial protection of minors in China,the principle in our country emphasizes both the protection of the rights and interests of minor victims,but also the protection of the lawful rights and interests of minor criminal suspects and defendants,and its initial intention is to pursue the balance between the personal interests of minors and the public interests of the society.In recent years,the vicious cases of crimes committed by under-age children are common,and the bad means of crimes are shocking,China’s two-way protection of minors seems to have encountered a “bottleneck”,the judicial practice emphasizes on the protection of the lawful rights and interests of minors who are at fault for their crimes,while the protection of the rights and interests of the minor victims is insufficient,and there is a failure in the protection of the minor’s personal interests and the public interests of society.There is an imbalance between the protection of the personal interests of minors and the public interests of society.In terms of law,the correction of minors in the wrongdoing of offences is plagued by the lack of coordination between the age of administrative and criminal responsibility,and the lack of ways of assuming the criminal responsibility of minors in a mitigated manner,while the protection of minor victims is plagued by the vagueness of the responsibility of schools for campus assaults and the lack of attention paid to the differences in the moral damage of minors,and corresponding legislative proposals have been put forward to adjust the age of administrative responsibility downwards,and innovate the ways of assuming criminal responsibility of minors.Accordingly,in the area of assumption of responsibility for minors at fault,legislative proposals were made to lower the age of administrative responsibility and innovate the way in which minors are held criminally liable,and in the area of protection of minor victims,countermeasures were put forward to improve the identification of the responsibility of all parties involved in campus assaults and to reconstruct the compensation for moral damage to minors.