Juvenile Justice System of China,

¶ … juvenile justice system of China, in order to compare it to that of the United States, the literature appears to underline several important points regarding China. China in general, strives to base itself upon a restorative system of justice. It also seems to be moving as a work-in-progress toward becoming more formalized as a "rule of law" system, and problematically, youth crime has been, over the recent decades, rapidly rising. Overall, it is not easy to compare the two systems. The American juvenile justice system has its own difficult problems. One cannot appraise the American system without avoiding its ethnic features, where some minorities, specifically African-American, are obviously incarcerated at an unequal rate compared to other ethnics. This study will first determine what features are reflected by juvenile justice that are based on principles of restorative justice and will conclude with a comparison to the American juvenile justice system.

Discussion

The history of the modern Chinese justice system may be seen as a progression from a kind of Confucian communitarianism codified into communism by the Maoists, then proceeding to the end of the Cultural Revolution, and ridding itself of Confucianism to adopt a system based on the "rule of law," as opposed to one based on the "rule of man" (Braithwaite, 1999; Zhang, 2008, p. 154-155 ). The official Chinese view regards this history as the progress of the socialist legal system that saw the practices of the Cultural Revolution revised, in 1978 (marking the ascent of Deng Xiaoping), toward the codification of laws under the country's Constitution (People's Daily). Hence since the end of the Cultural Revolution, China has evolved a socialist market economy legal system. This system has importantly incorporated some of the workable features of the communist legal system into its series of general law that include criminal law, civil law, administrative procedure law, and juvenile law, among others (People's Daily).

China did not have a juvenile justice system during Mao's period (1949-1978). When Deng Xiaoping took over the leadership and guided the country toward an open free market system, he undercut several structures that the communists had built that had made the people more or less dependent on the state. One important one was the rationing system that since 1955 rationed and controlled the flow of consumer goods and food grains in an attempt to balance both demand and supply (Chen, 2005, 95). The rationing also extended to housing and education and other items and things necessary for existence. The rationing devalued money-making and its route toward the independent bourgeois lifestyle (Ibid.). The market reform which Deng began to bring in the early 1980s undercut the state central planning economy and hoisted in consumerism (Ibid). But it had a more important effect at wiping out the dependable moral authority of the state in favor of market economics. Chen pointed out that Deng's changes released the peasantry from hukou, the household registration system. Peasant migrants begin to move in mass upon the cities, unemployed and unskilled. These peasants were joined by thousands of laid-off workers from state-owned enterprises. The effect was to create a large vagrant class circulating in the cities, a 'floating population' of unskilled workers.

Chen writes that the Chinese government, in its move toward an open market economy, had not foreseen the uprooting of populations to move into the cities and had not made a proper social welfare system to absorb it. China's economic and organizational controls had been undermined in its rapid pace move to the free market economy. Chen uses this development of his thesis to expand the rapid growth of crime and the reappearance and expansion of organized crime gangs and secret societies. The rapid urbanization tore away the traditional bonds of the communal Chinese family. Migrants entered the cities without family connections. Identities were no longer under state control or care.

Bakken (1993) focused on the rapid rise of youth crime. He identifies a significant growth in the youth population, stemming from the baby boomers. In 1949, the 14-25 age group was at 90 million. During the 1980s, the population peaked at, in 1987, 282 million (Bakken, 36). The population fell to 215 million in 2000 and by 2003 settled at 225 million. During the 1950s, youth delinquency averaged 18% of the total crime figures. In 1957, the figure reached 32.3% and during the mid 1970s it appeared to level at 40-50%. From 1979 to 1988, the youth delinquency figure of all total crime climbed from 47.6% to a peak of 75.7% (Bakken, 38). For youth 18, this figure was 1.4% in 1977, reaching by 1985, 23.8%.

Bakken underlined the new mobility that seemed to enter Chinese society as partially explaining a breakup of the cultural norm of self-restraint that had supported values of moderation, harmony and balance (Ibid., 43). With the youth circulating through the cities virtually unattached, negative characteristics of disorder and chaos began to appear and amplified themselves based on lui, a difting and moving. This phenomenon in Bakken's view was similar to the masses of people that moved from the farms to the cities during the nineteenth century Industrial Revolution in the European countries (p. 44).

In the new China of the 1980s and 1990s, the cities could not provide enough jobs to absorb the rapidly increasing population. Bakken points out that the cultural fabric of China stretched broken as the youth were detached from their families and, importantly they are detached from the economy (p. 47).

The Chinese system of values is built on a strong respect of family and also guanxi, a deep appreciation of personal bonds and mutual belonging (Chen, 93). Chen suggests that guanxi reappeared after the Cultural Revolution in the rapid resurgence of the secret societies and organized criminal gangs. Mislocated teens began to join and enlarge the membership ranks of these gangs. In a sense the gangs were a reaction to the decline of the paternalistic state and they were compounded by the occurring social dislocation and the increasing income gap between rich and poor (Ibid., 94). The government proved ill-prepared and unable to deal with this new phenomenon. The rise of the gangs led to "vehement waves of crime" (Chen, p. 95). In 1983 the government reacted with an apparently extreme and bloody 'Severe Blows', yanda, campaign. Heads of gangs were tracked down and a stark campaign of public executions was pursued. (Bakken, 50).

By eliminating the leaders of the gangs, the government sought to close gang membership to youth. There was a decrease in criminal activity over the short run, but the decrease was in petty crime and petty theft rates (Ibid., 52). Overall, the opposite happened. The gangs multiplied, the membership became younger and the networks spread (Ibid., 51). By 1989 youth participation in violent crime heightened to account for 71.3% (Ibid., 53).

In 1983, the government used the extended version Article 44 Chinese Criminal Law to punish youth for serious crimes. This article placed youth under the age of 18 outside the death penalty but held that there could be a two-year suspension if the youth were 16.

The Chinese legal system is governed by the Supreme Procuratorate, the head legal agency which could perhaps be seem functioning in similar way as the U.S. Department of Justice. The Supreme Procuratorate advises and governs the local or people's procuratorates who act as prosecutors. There is also the security system of police and the court system. The rising juvenile delinquency rate through the early 1980s led to the first juvenile court created in 1984 in Shanghai, the People's court of Changing District (Zhang, 2008, p. 154). By 2008, there were 3,300 juvenile courts for youth aged 14-18.

China's government created two significant laws regarding juveniles and delinquency. The law on the protection of minors was passed in 1991 and in 1999 the law on delinquency prevention was created. The 1991 law sought to regularize the protection of legal rights and interests for minor, to protect their physical and mental health and to, in a sense restore them back into society qualified citizens by promoting their intellectual and moral development. Clearly the principles of the law were in contrast to the individual base of Western society. Recognizing a closer relationship to the collective spirit of Chinese tradition and culture, the 1999 Juvenile Delinquency Prevention Act went even further "to mobilize all social forces to combat delinquency" (Zhang, 2008, 155). This law emphasizes may be seen as based more so on the principles of restorative justice in contrast to more punitive retributive systems. Youth who commit delinquent acts that are minor are routed through legal and moral education processes and ways to prevent recidivism are emphasized as preventative measures. Important is that the law defined specific roles and provided clear legal definitions for justice and enforcement personnel in regard to juveniles (Ibid., 155). The law demonstrated China's route toward establishing a system based on "rule by law."

Zhang discusses a "sub-justice system" which exists as an informal community-based program emerging from China's tradition. Called bang-jiao, it works to rehabilitate juveniles with a community group of parents, friends, relatives and representatives from the neighborhood committee and the police station. Formal rehabilitation is pursued in either a work-study school for juveniles or a juvenile reformatory. The emphasis for both is education and light or labor work (Ibid., 155-156).

China officially banned capital punishment for youth who were under 18 at the time of committing the capital crime in a 1997 amendment of its Criminal Code. However, the country has since executed two-18-year-olds, one in 2003 and one in 2004.

Recent news reports from China report that rates of juvenile crime continue to surge yearly. In 2007, juvenile crime was reported as increasing 13% annually since 2000 (China Daily 2007). The major provinces of Guangdong and Shanghai report huge increases in vagrant youth and orphan populations (Wenfang, May 5, 2010; Hongyi, July 7, 2009). These increases result from migrants who continue to move into urban areas from farms looking for work. The youth of these families are often left unattended or even abandoned. A state body reported one million street children in 2009 (Jia, April 9, 2009). One response has been to allow the children of migrant workers to attend schools without the usual fees applied to 'non-natives'(Wei, May 25, 2010). The State has responded with such measures as erasing juvenile criminal records and commiting billions to a fund for building welfare and community service shelter facilities for vagrant youth in all prefectures (Chuanjiao, March 26, 2009; "Welfare of children"). In 2008, the Supreme People's court sent a delegation abroad to study juvenile justice (Dui Hua).

Conclusion

Retributive justice indicates that for justice to be served, the offender must be punished in proportion to the severity of crime committed. The concept of restoration, Wenzel et al. explain, implies a period of deliberation that allows both the victim and the offender, as well to go through processes of healing (Wenzel et al. 2008, 377). The offender must accept accountability and make some form of recompensation or repair of the wrongdoing that was committed and the victim in some way is able to offer forgiveness as their resentment is overcome (Ibid.). The offender is made to re-endorse the shared community values which their act had violated (Ibid., 381). Wenzel et al. make the significant point that the sharing of a common identity perhaps best defines an application of a retributive or restorative notion of justice. If the offender and the victim share a common social identity then both can accept the normal processes of validating the values underlying that identity.