Juvenile criminal record sealing system: the way of social return under judicial warmth

Today's children and young people are the successors and the main force for the great cause of building a strong country and national rejuvenation. -- Xi Jinping

I. Introduction

Protecting the growth of minors is to care for the bright tomorrow of the country and cultivate the flower of hope. The 2012 revision of the Criminal Procedure Law added the provisions of the juvenile criminal record sealing system: those who are under the age of 18 at the time of the crime and are sentenced to a penalty of less than five years shall seal the relevant criminal records.

The juvenile criminal record sealing system adheres to the state's policy of “education, reform and rescue” for delinquent minors and the principle of “education is the first, punishment is the second”, and effectively helps delinquent teenagers return to society, so as to avoid the future of minors being overshadowed by restrictions on criminal records.

Second, the legislative intention of the juvenile criminal record sealing system

The criminal record system is a legal system of our country, which is the objective record of the criminal situation of the state specialized organs, and is also an important content of the modern social management system. Through reasonable registration and effective management of criminals, we can fully grasp and use the information of criminals, so as to effectively prevent and control crimes and maintain order. The sealing of criminal records of minors means that the people's procuratorates are prohibited from providing criminal records, files, or proof of having criminal records when the minors have not committed new crimes and there are no omissions (see Article 485 of the Criminal Procedure Rules of the People's Procuratorates).

The Supreme People's Procuratorate's White Paper on Juvenile Procuratorial Work (2023) shows that in 2023, more than 50% of juvenile crimes including theft, affray and picking quarrels and stirring up trouble were accepted for review and prosecution. At the same time, the proportion of felonies sentenced to more than five years in prison for juvenile crimes is only about 20%. These crimes, caused by lack of discipline or impulse, are easily corrected. But once these delinquents are labeled as “petty criminals,” they can be difficult to correct. Therefore, the juvenile criminal record sealing system is like a cure to save lives, providing a way for misbehaving teenagers to return to normal social activities and eliminating the shadow brought by young careless crimes.

Specifically, the legislative intention of the sealing of juvenile criminal records is to objectively remove obstacles for the return of delinquent juveniles to society, subjectively safeguard the dignity of juveniles, and encourage the rehabilitation of minors.

1. Elimination of obstacles to return to society

The juvenile criminal record sealing system provides necessary conditions for social acceptance and smooth life.

There is a high probability that minors will undergo file review and background investigation in the process of examination, study, employment and life. Once there is a major stain such as a criminal record, it is likely to have a devastating impact on the development of minors, not only will it bring setbacks in education and employment, it will also bring serious discrimination, and it will seriously frustrate the confidence of the fallen young people, which is not conducive to returning to society. The sealing of criminal records requires that without legal procedures and strict examination, no unit may inquire, and at the same time, it can issue a certificate of no criminal record.

2. Create an inclusive social atmosphere

The juvenile record sealing system can also create a social atmosphere of tolerance and acceptance, and help society change its attitude toward delinquent minors.

In the past, society's attitude toward delinquent teenagers was often too harsh, tending to treat them as “petty criminals” to punish and deter them. With the in-depth understanding of the characteristics of the physical and mental development of minors and the causes of crime, the social concept has gradually changed, and the principle of “education is the first, punishment is the auxiliary” has been gradually adopted in the treatment of juvenile crime. This requires that institutions be created simultaneously to provide conditions and uniform standards for the transition from discrimination to inclusion.

3. Maintain youth's self-dignity

The sealing of juvenile criminal records can safeguard the dignity of minors and help them develop for the better.

The existence of criminal records will completely destroy the human dignity of minors, no matter where they go, they will be labeled as “criminal juveniles” and inferior everywhere. In the long run, the confidence of teenagers will be lost. Adolescence is a period of rapid change in a person's physical, mental and social roles, increased self-awareness, and greater attention to status in society and the evaluation of others. The famous American psychologist Erikson's psycho-social development theory holds that youth is an important stage in the formation of personal identity. During this stage, teenagers explore different roles and identities and try to find their place in society. If they are identified as "small criminals" at this stage, which seriously reduces the dignity and self-evaluation of teenagers, then the self-efficacy, self-respect and self-value of teenagers will be in a low state for a long time, which is not conducive to the life and development of teenagers.

4. Encourage delinquent teenagers to step out of the shadow of crime

What's worse, the label of a criminal record can have a long-lasting psychological impact, sending teenagers down the wrong path.

The label theory in social psychology holds that individual behavior itself does not have inherent right or wrong attributes, but that society uses definitions and labels to distinguish between normal and abnormal behavior. Social norms and values determine what behavior is considered deviant or transgressive. And punishment as a violation of social rules is undoubtedly the most serious deviation. Individuals who are labeled negatively may begin to internalize the label, change their self-identity, accept the negative definition, and gradually become more and more consistent with the negative image as defined by the “delinquent juvenile.”

Therefore, some teenagers broke down in tears at the ceremony of sealing criminal records, admitting that they were “relaxed”. The criminal record sealing system can help the delinquent youth get rid of the historical burden and start anew, encourage the delinquent youth to walk out of the shadow of crime and reform, and eliminate worries for the youth to return to society.

Third, the specific provisions of the juvenile criminal record sealing system

According to the provisions of Article 286 of the Criminal Procedure Law, Article 59 of the Law on the Prevention of Juvenile Delinquency, and Article 485 of the Criminal Procedure Rules of the People's Procuratorate, the conditions for the sealing of juvenile criminal records are that the criminal subject is a minor at the time of the major crime, and the criminal subject is ultimately sentenced to less than five years in prison. If and only if a minor is found to have missed a crime or committed a new crime, the criminal record may be unsealed for the purpose of handling the case.

In May 2022, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly formulated the Measures for the Implementation of the Sealing of Juvenile Criminal Records (hereinafter referred to as the “Implementation Measures”), making further clear and detailed provisions for the implementation rules.

01. Subject of sealing obligation and sealing procedure

According to the Measures, public security organs, people's procuratorates, people's courts and judicial organs are respectively responsible for accepting, reviewing and handling the sealing and inquiry of criminal records within their respective powers. For example, for minors who are sentenced to less than five years of imprisonment and are exempted from criminal punishment, after the judgment takes effect, criminal judgment documents and the Notice of Criminal Record Sealing shall be served on the defendant in a timely manner. At the same time of sealing up free case files, the Notice of sealing up Criminal Records shall be delivered to the people's procuratorate and public security organ at the same level. The seal shall be completed within three working days.

For example, after the minor Zhang SAN is sentenced to probation for theft, the court, at the same time of sentencing, should inform Zhang SAN and his guardian of the rights and obligations of sealing criminal records, issue a notice of sealing, and send the corresponding notice to the judicial organs and administrative organs that have contact with Zhang SAN's case, requiring the sealing of the corresponding records. The relevant unit shall conclude the sealing matter within three working days after receiving the notice.

After the criminal record is sealed up, the application of a minor or legal agent for a certificate of no criminal record shall be approved. Minors whose criminal records have been sealed are exempted from the obligation to report their criminal records when they join the army or are employed. The main body of legal supervision over the sealing up of records is the people's Procuratorate, which has the power to review matters improperly sealed or omitted to seal up and guide them to be corrected.

02. Contents and duration of sealing

The content of the seal is comprehensive, emphasizing that related materials involving minor cases “should be sealed.” As for the litigation materials in the criminal procedure, the records of social investigation, psychological counseling, assistance and education, and judicial assistance of criminal minors shall be sealed. The sealing period is permanent and shall not be unsealed or queried without certainty.

The Measures specifically provide that if the information that should be sealed is improperly disclosed, resulting in minors not receiving equal treatment in terms of schooling, employment, and living security, they can file an application for sealing up with the relevant authorities or units, or apply for supervision by the people's Procuratorate.

03. Query and use mechanism of sealed records

The Measures strictly restrict the subject and procedure of inquiry. Where a judicial organ queries a criminal record according to the needs of case handling or the relevant unit queries the criminal record according to state regulations, it shall submit a written application to the judicial organ that seals the record, and state the reasons for the inquiry, the basis and the scope of application, and present the official letter and identity certificate of the unit at the same time. If they agree to inquire, the relevant units and staff shall also sign a confidentiality undertaking. The Measures also provide that if the relevant information is not used or leaked in accordance with the provisions, the relevant personnel should be investigated for responsibility according to law, and if the circumstances are serious, criminal responsibility can be investigated.

4. Specific analysis of implementation cases

The sealing of juvenile criminal records has a good social effect and demonstration effect. Let's take a look at three examples.

1, impulse record elimination, "traceless return to society"

In the typical case of judicial protection of the rights and interests of minors in Weifang Court in 2023, the minor defendant Li Mou beat others to serious injury, and the court sent a family education guidance order to Li Mou's parents, while sealing the criminal record according to law. It creates good conditions for minors who are still in adolescence, act impulsively, have weak legal consciousness, and make friends carelessly and cause crimes to return to society without trace.

2. Make up for information leakage and help employment

In 2020, someone on the Cloud platform of the "Social Service Center for Minors in Shanghai's Changning District" asked the prosecutor for help: "Prosecutor, when I inquired about personal credit information on the government affairs service App, I saw my criminal record when I was a minor. Now that I'm having trouble finding a job, what should I do?" The cause of the incident is that employers will query information through the enterprise employment service platform in recruitment to verify whether the applicant has a criminal record, resulting in obstacles to finding a job for help. The information is sealed after prosecutors verify that the petitioner committed theft when he was a minor. The problem of information leakage is also improving with the introduction of relevant legal provisions.

3, give positive incentives, excellent students return

Zhuangzhuang, a senior high school student in Shanghai, learned that he could modify the data with a software recharge and illegally stole more than 40,000 yuan. Through the visit and investigation of social workers in juvenile affairs, the prosecutor investigated the personality characteristics, family conditions, social contacts, growth experiences, and whether the minors have conditions for help, and found that Zhuang Zhuang was lucky and weak legal awareness that led to the crime. After the judgment of the case took effect, the procuratorate actively performed its duties, sealed the criminal record, coordinated the police station to issue a certificate of no criminal record, so that Zhuangzhuang could successfully take the college entrance examination. Later, the judge also kept in touch with Zhuang Zhuang for a long time. Zhuangzhuang successfully entered a normal college after re-entering, and served as a student leader in the university, winning scholarships for many times.

In these cases, the sealing of criminal records has helped delinquent teenagers restart their lives "without a trace." Take the lessons learned and start a new life. Without a criminal record seal system, a major blow to important barriers such as education and employment could destroy a promising future and miss an opportunity to save a good young person. It is worth noting that while sealing criminal records, it is often accompanied by the active participation of juvenile prosecutors, juvenile social workers, communities or family education guidance to start social help and education for minors. Combining the forces of family, school, society and judicial organs to help minors, this can play the biggest role of "education and rescue".

Of course, while implementing the criminal record sealing system, there are also many problems and challenges. For example, in the second example above, there is the problem of improper disclosure of criminal minors' information, and the supervision and accountability mechanism needs to be further implemented in practice. At the same time, for the criminal records before the introduction of the criminal record sealing system, or even dating back to a relatively long time ago, if the relevant personnel are unaware and do not apply, the subjective willingness and objective difficulty of the prosecution's intervention will also increase correspondingly. The most important thing is to implement the juvenile criminal record sealing system to all organs that may come into contact with crimes involving minors, so that the consciousness of protecting, educating and saving minors is deeply rooted in the minds of staff. At the same time, the corresponding measures such as family education guidance, social worker help and social help and education can be perfected to protect a good path for the fallen young people to return to the right track.

Fifth, the judicial warmth and social effect of the juvenile criminal record sealing system

The law is more loving when it is punished. The juvenile criminal record sealing system proves that the judiciary is not only cold logic, but also the warmth of loving minors and the enthusiasm of actively helping them, which is the heavy humanistic care in the judicial system. It contains not only special protection for minors, but also provides a way for minors to break the identity label and return to society normally. As long as the law is no longer broken, the criminal broker will be sealed forever, giving the maximum saving of minors.

At the same time, the system design of juvenile criminal record sealing also reminds us that there are no small things on the road to the protection of minors. Just at the beginning of the design of the criminal record system, there is no special protection for minors, which may bring huge and insurmountable challenges to minors' education and employment. Minors who are difficult to enter school and find employment are likely to commit crimes again as adults, resulting in failure to rescue, so that the unremitting efforts of lenient punishment and social correction may be lost because of a criminal record.

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On the journey of protecting minors, we have a long way to go. This requires not only love and care, but also a rigorous institutional guarantee to build a safe and harmonious blue sky for their growth. Dehe Shanghai Juvenile Rights and Interests Protection Committee is willing to the relevant judicial organs and minors involved in the case to deeply understand and practice the juvenile criminal record sealing system, to provide a warm opportunity for those teenagers who have stumbled, so that they have the opportunity to regain confidence and move towards a new life journey.

Author | Guo Jiajia

The above content only represents the author's personal position and opinion, and does not constitute a formal interpretation of the legal provisions, nor does it represent the official views of Deho Hantong Law Firm.