Thu, Jan 07, 2021 page8

• Review criminal responsibility age

  • By Chao Hsuey-wen 趙萃文
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  On Dec. 25, the Legislative Yuan passed on its third reading amendments to the Civil Code lowering the statutory age of majority from 20 to 18 years old, while also providing for a transitional period before they take effect on Jan. 1, 2023.

  Complementary measures that were passed included amending Article 980 of the Civil Code to say that a man or woman aged 18 or younger cannot get married, and deleting Article 981’s provision that “a minor must have the consent of his statutory agent for concluding a marriage.”

  It would be fair to say that these amendments are a landmark reform in the history the Civil Code.

  However, less attention has been paid to provisions of the Criminal Code regarding the criminal responsibility of minors.

  Article 18 of the code states: “An offense committed by a person who is under 14 years of age is not punishable. Punishment may be reduced for an offense committed by a person more than the age of 14, but under the age of 18.”

  The forerunner of this article was adopted as part of Shen Jiaben’s (沈家本) legal reforms in the final years of the Qing Dynasty.

  At that time, conservative officials were of the opinion that Western laws’ provision that juveniles could be exempt from punishment or have their punishment reduced was well intentioned and could be copied by China.

  However, they felt that the original draft’s provision that anyone aged 16 or younger bore no criminal responsibility — no matter how great or small, serious or trivial the offense might be — was too generous in its age range and could be open to abuse.

  Article 11 of the New Penal Code of the Great Qing Dynasty, which was enacted in 1911, adopted the compromise that no one aged 12 or younger should be punished for an act, while the punishment could be reduced for those aged 16 or younger. This provision was retained in the 1912 Provisional New Criminal Statute, which was in force in the early years of the Republic of China, following the fall of the Qing Dynasty.

  This was followed by the Criminal Code that was adopted in 1928, and is now known as the Former Criminal Code.

  In consideration of China’s lack of economic development and limited education system, the 1928 Criminal Code raised the age of criminal responsibility to 13, with reduced penalties for those aged 13 to 16.

  The current Criminal Code, which was drawn up in 1935, followed. It increased the age of criminal responsibility by one year to 14, as stipulated in Article 18, which has not been changed since then.

  In the UK, since 1998, children are considered responsible for crimes at the age of 10, and there are special prisons for juvenile offenders. The age of criminal responsibility is set at 13 years in France and 12 years in the Netherlands. In Ireland, it was raised from seven to 12 in 2006.

  In Germany, which has long been the model for criminal law in Taiwan, children are considered responsible for crimes at the age of 14, the same as in Taiwan.

  However, because Germany has in the recent past experienced a number of violent and serious sexual crimes committed by minors, there is ongoing discussion about reducing the age of criminal responsibility to 12.

  The provisions of Section 7 of Germany’s Youth Courts Act also give courts the authority to order preventive detention for juvenile offenders. The overall trend in Germany is for its criminal justice policies to become more stringent regarding juvenile offenders.

  In Taiwan’s education system, the age of 14 generally coincides with the second year of junior-high school. Today, information networks are highly developed and education is universal, so conditions differ from those of a century ago during the late Qing Dynasty and the early part of the Republic of China. From time to time, juveniles commit serious acts of criminal violence.

  However, because of the provisions of Article 18 of the Criminal Code, when dealing with persons aged 14 or younger, courts have no choice but to find them not guilty. The most that courts can do is to order a certain period of reformatory education with restrictions on personal freedom, which has a limited deterrent effect.

  At this landmark moment, when the legislature has amended the Civil Code’s definition of the age of majority, it should also give due attention to the matter of the age of criminal responsibility, as defined by Article 18 of the Criminal Code.

  Chao Hsuey-wen is a lecturer at Soochow University and a doctoral candidate in Fu Jen Catholic University’s department of law.

  Translated by Julian Clegg
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