[About the Author] Song Yinghui is a professor of Beijing Normal University and director of the Center for Juvenile Prosecutorial Research. Liu Lingyue is a doctoral candidate of Beijing Normal University.

[Source] Research on the Rule of Law, 2022, Issue 3.

        Summary

Paragraph 3 of Article 17 of the Criminal Law has lowered the statutory minimum age of criminal responsibility under strict conditions, providing a new way to deal with serious harm cases committed by minors who have reached the age of 12 but not the age of 14. In entity, the circumstances of the case are bad, which need to be comprehensively evaluated according to the situation of the case, comprehensively considering the motive, purpose, means, process, consequences, role in the crime, object, cause of the crime, place, time, post crime performance and other conditions, as well as whether its criminal behavior impacts the basic values of society, challenges the bottom line of social ethics and other factors, to judge. In terms of procedural elements, the approval of prosecution in paragraph 3 of Article 17 refers to the approval of the initiation of criminal prosecution procedures, which is different from the limitation of prosecution approved by the Supreme People's Procuratorate. The essence of "approval of prosecution" is that the Supreme People's Procuratorate decides whether the case will be treated as a criminal case or a protective punishment case, and its legal nature is the system of prior discussion. In terms of specific procedures, the approval of prosecution shall be accepted by the people's procuratorate of a city divided into districts and reported to the Supreme People's Procuratorate for review and decision. Prior to the approval of the Supreme People's Procuratorate, the method of evidence collection shall be differentiated according to whether the perpetrator is found after the crime. If the perpetrator is a young minor, it may Corresponding investigation and arbitrary investigation measures can be taken, and certain mandatory control measures can be taken according to the situation.

On December 26, 2020, the Eleventh Amendment to the Criminal Law of the People's Republic of China was deliberated and adopted at the 24th meeting of the Standing Committee of the 13th National People's Congress. Article 17, paragraph 3, of the amended Criminal Law stipulates that: "If a person who has reached the age of 12 but not the age of 14 commits the crime of intentional homicide or intentional injury, causing death or serious injury by special cruel means, causing serious disability, and the circumstances are flagrant, and has been approved by the Supreme People's Procuratorate for prosecution, he shall bear criminal responsibility." This article, under specific circumstances and through special procedures, The statutory minimum age of criminal responsibility has been lowered individually. It can be said that the conditional reduction of the age of criminal responsibility provides a way to deal with serious harm cases committed by minors who have reached the age of 12 but not the age of 14, and responds to the social concerns caused by crimes committed by young minors in practice. However, there are still different understandings on how to understand the provision of Paragraph 3 of Article 17 of the Criminal Law. For this reason, it is necessary to clarify the meaning and nature of the approval prosecution, clarify its applicable substantive conditions and procedural elements, and explore the pre approval evidence collection procedures closely related to the approval decision. This paper intends to focus on the above issues and give some simple suggestions, hoping to be helpful to the relevant research.

1、 Meaning and nature of approved prosecution

In criminal proceedings, the exercise of the right of prosecution can be divided into national prosecution and private prosecution. Among them, national prosecution is the leading mode of prosecution in countries or regions of all jurisdictions. State prosecution can be divided into broad sense and narrow sense. The difference between the two lies in that the former refers to the activities that the specialized agencies on behalf of the state initiate criminal proceedings, investigate crimes and prosecute crimes according to their functions and powers; The latter only includes the activities of the prosecuting organ bringing a lawsuit to the judicial organ. China adopts the broad principle of national prosecution. One of the important ways to realize the principle of national prosecution is that the Supreme People's Procuratorate approves the prosecution. With regard to the approval of prosecution by the Supreme People's Procuratorate, in addition to the provisions of the third paragraph of Article 17 of the Criminal Law mentioned above, the fourth paragraph of Article 87 of the Criminal Law also provides for the resumption of the limitation of prosecution, that is, if the statutory maximum punishment is life imprisonment or death penalty, after 20 years, if it is deemed necessary to prosecute after 20 years, it must be reported to the Supreme People's Procuratorate for approval. As for the "approval" stipulated in Item 4 of Article 87, the Rules of Criminal Procedure of the People's Procuratorate and the Provisions on Some Issues Concerning the Handling of Approved Prosecution Cases interpret it as the power of the Supreme People's Procuratorate to initiate public prosecution on the review and decision of specific cases. Then, whether the meaning of "approved prosecution" in the third paragraph of Article 17 of the Criminal Law is the same as that of "approved prosecution" in the fourth paragraph of Article 87 and relevant judicial interpretation provisions, the answer to this question is not only related to the interpretation of the meaning of "approved prosecution" in the third paragraph of Article 17, but also related to the understanding of the nature of the approved prosecution procedure.

（1） Meaning of approved prosecution

According to modern Chinese, "approval" refers to approval after review. Then, in the third paragraph of Article 17 of the Criminal Law, "approval of prosecution" should be understood as "approval of prosecution" or "approval of prosecution according to criminal cases"? The significance of distinguishing the two lies in that, if it is the former, the investigation organ can file a case for investigation and take compulsory measures in accordance with the provisions of the Criminal Procedure Law before the Supreme People's Procuratorate approves it; If it is the latter, according to the principle of legal procedure, the Supreme People's Procuratorate cannot start the criminal procedure before approval, let alone take the compulsory measures in the Criminal Procedure Law. In this regard, some scholars believe that Article 17 of the Criminal Law is about the age of criminal responsibility. Among them, the provision in paragraph 3 that "if the Supreme People's Procuratorate approves the prosecution, it shall bear criminal responsibility" does not mean that if the prosecution is approved, it must be held accountable, and the people's court is also required to try the case according to the evidence and facts. If a guilty judgment is made after the trial, the actor shall bear criminal responsibility after the judgment becomes effective. Some scholars also believe that the approval of prosecution in Paragraph 3 of Article 17 of the Criminal Law refers to the approval of prosecution, and the approval procedure is subject to the Provisions on Several Issues Concerning the Handling of Approved Prosecution Cases issued by the Supreme People's Procuratorate on August 21, 2012.

The author believes that although Article 17 of the Criminal Law stipulates the age of criminal responsibility, the specific provisions on the age of criminal responsibility differ in principle, which can be divided into two types: one is the provisions of Paragraph 1 and Paragraph 2, that is, a person who has reached the age of 16 should bear criminal responsibility for a crime; If a person who has reached the age of 14 but not the age of 16 commits intentional homicide, intentional injury that causes serious injury or death, rape, robbery, drug trafficking, arson, explosion, or the dropping of dangerous substances, he shall bear criminal responsibility. The other is the provision in paragraph 3 that "if a person who has reached the age of 12 but not the age of 14 commits the crime of intentional homicide or intentional injury, causing death or serious injury to another person by special cruel means, causing serious disability, and the circumstances are flagrant, and has been approved by the Supreme People's Procuratorate for prosecution, he shall bear criminal responsibility". It can be seen from the comparison of articles that the cases specified in paragraphs 1 and 2, namely criminal cases, do not need special approval, while the cases specified in paragraph 3 are obviously different. They must be subject to the approval of the Supreme People's Procuratorate for prosecution, and their actors should be included in the consideration of criminal responsibility when they have reached the age of criminal responsibility, Otherwise, there is no need to specifically stipulate such a restrictive expression as "those approved by the Supreme People's Procuratorate for prosecution". This is consistent with the provisions of the Prevention of Juvenile Delinquency Law on special education or special correction education for serious misconduct cases as protection and punishment cases. That is to say, the implementation of serious harmful acts against minors who have reached the age of 12 but not the age of 14 is, in principle, a case of protection and punishment, subject to the measures specified in the Law on the Prevention of Juvenile Delinquency. Only when special approval procedures are passed for intentional homicide and intentional injury, can it be regarded as a criminal case. This is totally different from the logical starting point of the situation that is regarded as a criminal case at the beginning and then separated from the criminal procedure, which does not meet the conditions for investigating criminal responsibility (such as the mental patients who belong to self-defense, cannot recognize and control their own behavior, etc.). One is to strictly restrict access to the criminal procedure, The other is to divert a few cases that should not enter the criminal procedure after entering the criminal procedure.

In view of the above, we believe that the approved prosecution in the third paragraph of Article 17 of the Criminal Law refers to the approval of prosecution in a broad sense, that is, the object of approval is the case whether it can enter the criminal procedure, and its legal effect is whether the case can start the criminal prosecution procedure, rather than just initiate a public prosecution. There are both similarities and obvious differences between the approved prosecution in this article and the approved prosecution in item 4 of article 87 and relevant judicial interpretations. The similarities are as follows: First, these two types of cases need to be approved by the Supreme People's Procuratorate. Specifically, according to the provision of the third paragraph of Article 17 of the Criminal Law, for serious harm cases committed by minors who have reached the age of 12 but not the age of 14, only those who have been approved by the Supreme People's Procuratorate for prosecution should bear criminal responsibility. For cases where the limitation period for prosecution has been restarted, according to Item 4 of Article 87 of the Criminal Law and the provisions of the relevant judicial interpretations, only with the approval of the Supreme People's Procuratorate can a case be prosecuted. Second, both cases are based on the principle of non approval, with approval as an exception. This is reflected in the fact that the law and judicial interpretation have set up corresponding substantive and procedural elements for the approval of the application for these two types of cases, and the Supreme People's Procuratorate has checked the necessity of approving the prosecution, aiming at strictly limiting the arbitrary start of the procedure.

However, there are still differences between the approved prosecution stipulated in the third paragraph of Article 17 of the Criminal Law and the fourth paragraph of Article 87 of the Criminal Law: first, the cases that have passed the time limit for prosecution were originally cases that need to bear criminal responsibility, meet the conditions for prosecution, and should be prosecuted, but the time limit for prosecution has passed, and the Supreme People's Procuratorate needs to approve and confirm whether to restart the time limit for prosecution. Article 112 of the Criminal Procedure Law stipulates that the people's court, the people's procuratorate or the public security organ shall, according to the scope of jurisdiction, promptly review the materials of reporting, accusing, reporting and voluntary surrender, and shall file a case when they believe that there are facts of a crime that require investigation of criminal responsibility. Therefore, the premise of starting the criminal procedure is "to believe that there are criminal facts that need to be investigated for criminal responsibility". Article 16 stipulates that in any of the following circumstances, criminal responsibility shall not be investigated, and if the case has been investigated, the case shall be dismissed, or the prosecution shall not be initiated, or the trial shall be terminated, or the case shall be declared innocent: (1) The circumstances are obviously minor, the harm is not serious, and the case shall not be considered a crime; （2） The limitation period for prosecution has expired; （3） Exempted from punishment by a special amnesty order; （4） A crime that is dealt with only after being told in accordance with the Criminal Law has not been told or has been withdrawn; （5） The criminal suspect or defendant dies; （6） Other laws provide for exemption from investigation of criminal responsibility. Obviously, those who fall under one of the circumstances specified in Article 16 of the Criminal Procedure Law shall not be investigated for criminal responsibility and shall not be prosecuted, and certainly shall not be prosecuted. In other words, the cases that can be prosecuted should be those that need to be investigated for criminal responsibility and meet the conditions for prosecution. The provision of Item 4, Article 87 of the Criminal Law provides a way to continue the prosecution of cases "whose crimes have expired the limitation period for prosecution". Cases that originally met the conditions for prosecution and should be prosecuted should have been filed for investigation according to law. In practice, this kind of case has generally started the procedure of case filing and investigation after the case was committed. After the limitation of prosecution for various reasons, the case filing and investigation was originally carried out according to law. However, the scope of cases defined in Paragraph 3 of Article 17 of the Criminal Law is very clear, that is, the cases implemented by "minors who have reached the age of 12 but not the age of 14", according to the general provisions of the Criminal Law of China on the age of criminal responsibility, such cases are different from those that originally meet the conditions for prosecution. They must be subject to the approval of the Supreme People's Procuratorate before being prosecuted, Therefore, it is a case that meets the conditions for prosecution. According to the provisions of the Law on the Prevention of Juvenile Delinquency and the Criminal Law, there are two trends in cases of serious harm committed by "minors who have reached the age of 12 but not the age of 14": first, the measures stipulated in the Law on the Prevention of Juvenile Delinquency are directly applied without reporting to the Supreme People's Procuratorate, Or the Supreme People's Procuratorate does not approve the prosecution and applies the measures specified in the Law on the Prevention of Juvenile Delinquency; The second is to initiate criminal procedures after reporting to the Supreme People's Procuratorate for approval of prosecution. From the perspective of legal provisions, not all such cases must be reported to the Supreme People's Procuratorate for approval in order to start the criminal prosecution procedure, and the measures stipulated in the Law on the Prevention of Juvenile Delinquency should be applied according to law, which is also an optional way of handling. In other words, the reason why such cases need to be approved by the Supreme People's Procuratorate is that only after approval can we determine whether to bear criminal responsibility and whether to meet the conditions for prosecution as a criminal case, that is, whether the case is handled as a criminal case or as a protective punishment.

Second, the focus of whether to approve prosecution is different. For cases that have passed the prosecution deadline, when deciding whether to prosecute, the first thing is to judge from the national level and consider the overall situation of national interests, social development and stability. The second is to consider the impact of the case on social stability, whether the damage and panic caused by the crime in the local area have been eliminated, and the attitude of the victim and the local people. For serious harm cases committed by minors who have reached the age of 12 but not the age of 14, when approving, we should first proceed from the perspective of behaviorism. We should not only consider the seriousness of the crime, the harmful consequences and social impact caused by the crime, but also consider the physical and mental conditions, growth environment and other factors of the minors, and pay attention to their social needs, It needs comprehensive consideration, special assessment and prudent decision.

（2） Nature of approved prosecution

After clarifying the meaning of prosecution approval in the third paragraph of Article 17 of the Criminal Law, the next question is the nature of prosecution approval. "Those who have been approved by the Supreme People's Procuratorate for prosecution shall bear criminal responsibility", which indicates that the Supreme People's Procuratorate shall review and decide on the trend of serious harm cases committed by "minors who have reached the age of 12 but not the age of 14", in addition to taking measures in accordance with the Law on the Prevention of Juvenile Delinquency. In other words, our country adopts protectionism against the above-mentioned minors who have committed serious harm cases, that is, the highest procuratorial organ judges whether they are criminal cases or protective punishment cases in the process. Only with the approval of the highest procuratorial organ can criminal prosecution of minors be launched. In the juvenile justice system, this system, which is reviewed in advance by specialized agencies, and determines which handling procedure should be applied according to the crime or mistake of the juvenile involved, is the system of prior discussion.

The system of prior discussion mainly involves the ownership of the right of prior discussion. According to the different subjects of the exercise of the right of prior discussion, the practices of relevant countries and regions can be divided into three modes: the mode of trial organ first discussion, the mode of procuratorial organ first discussion, and the mode of multiple subjects first discussion. First of all, the representative countries and regions of the mode of trial organ first discussion include Japan and Taiwan. According to the provisions of the New Juvenile Law of Japan, "the juvenile justice department of the family court is responsible for judging whether the state authority should intervene in or interfere with the personality growth process or the environment of juveniles". Similar to Japan, the "Juvenile Incident Handling Law" (hereinafter referred to as the "Juvenile Incident Law") in Taiwan requires that the juvenile deliberation system should meet certain standards. The first is to adopt the principle of judge first discussion and exclude other organs such as procuratorial organs or prosecutors from exercising the right of first discussion. The second is to adopt the principle of protection priority, that is, in principle, to take protective measures against minors who are guilty of crimes. Only when the crimes of minors involved in crimes are particularly serious can they be transferred to criminal proceedings. Secondly, Germany is the representative country of the mode of first discussion of the procuratorial organ. The so-called procuratorial organ first discussion mode means that the procurator decides whether the case will enter the juvenile criminal procedure according to the situation of the case. However, the German procuratorial organ first discussion mode is full of constitutional doubts. Finally, the representative country of the multi subject first discussion model is the United States, and the federal and state level practices are reflected in three aspects: first, the police decide whether minors enter the juvenile justice system through preliminary investigation, station house adjustment, and transfer to the court filing department for serious crimes for at least years; Second, the juvenile court first discussed. Juvenile court first discussion refers to the pretrial screening procedure conducted by the juvenile court according to the specific circumstances of the case; The third is that the procurators discuss first. Prosecutors' prior deliberation means that some states stipulate that prosecutors should screen and review cases and make decisions to prosecute cases to juvenile courts or criminal courts.

Unlike some countries or regions outside the region, which focus on courts and have formed juvenile judicial procedures earlier, China's juvenile judicial procedures started late, and the relevant provisions are scattered in departmental laws, lacking systematicness, and have been attached to adult judicial procedures for a long time. In other words, in China, there is no independent juvenile judicial law. Only when there are special provisions in the law can the special provisions be applied to juvenile cases in priority, and when there are no special provisions, adult judicial procedures can be applied. In addition, China's criminal proceedings are strictly structured in stages, and the courts are at the back end of criminal procedures, In practice, it is difficult to form a court centered system of the right of prior deliberation. In view of the constitutional orientation of the procuratorial organ, China's Juvenile Protection Law gives the procuratorial organ supervision over litigation activities involving minors. At the same time, the procuratorial organ is the organ that can participate in the criminal proceedings throughout the process. It starts the court trial procedure after the public security investigation procedure, and is also the only organ that decides to initiate public prosecution. The reason why the third paragraph of Article 17 of the Criminal Law endows the procuratorial organ with the power to approve the prosecution, in addition to being the natural subject exercising the power of prosecution and the legal decision organ of pre-trial procedure, is more importantly to play the role of the procuratorial organ, especially the highest procuratorial organ, in legal supervision and unifying the application of prosecution standards for such cases. As some scholars pointed out, the procedure design of the Supreme Procuratorate's approval of prosecution not only has the consideration of strictly limiting the criminal responsibility of the procuratorial organ for prosecuting young minors, but also has the meaning that the legislative organ endows the Supreme Procuratorate with a unified standard for prosecuting such cases. It can be said that the provision of the third paragraph of Article 17 of the Criminal Law has constructed a review and approval mechanism for the protection and punishment cases and criminal cases of serious harm cases committed by minors who have reached the age of 12 but not the age of 14.

2、 Substantive elements for approval of prosecution
Substantive elements are the basis for regulating the emergence of national criminal power. Serious harm cases committed by minors who have reached the age of 12 but not the age of 14 include age, crime, criminal consequences and bad circumstances. First, about age. Paragraph 3 of Article 17 of the Criminal Law stipulates that the objects of the application of prosecution approval are minors who have reached the age of 12 but not the age of 14. Accordingly, serious harm cases committed by minors under the age of 12 cannot enter the approved prosecution procedure; Those who have entered the approval procedure and found out that they are minors under the age of 12, and those who have doubts about whether they have reached the age of 12, cannot be approved for prosecution. Second, about crimes. Article 17, paragraph 3, of the Criminal Law stipulates that "if a person who has reached the age of 12 but not the age of 14 commits the crime of intentional homicide or intentional injury, causing death or serious injury to a person by special cruel means, causing serious disability, and the circumstances are flagrant, and has been approved by the Supreme People's Procuratorate for prosecution, he shall bear criminal responsibility", and does not specify that "he commits the crime of intentional homicide or intentional injury" Whether it refers to specific charges or criminal acts. However, the provision of this article is in paragraph 3 of article 17, after paragraph 2 of article 17. As for whether the eight categories of cases specified in paragraph 2 refer to criminal acts or charges, the Legal Working Committee of the Standing Committee of the National People's Congress, in its Reply to the Question on the Scope of Criminal Responsibility of Persons Who Have Reached the Age of 14 but Not the Age of 16, holds that "the eight types of crimes specified in paragraph 2 of Article 17 of the Criminal Law refer to specific criminal acts rather than specific charges." According to the inherent logical relationship between legal provisions, the "crime of intentional homicide and intentional injury" in paragraph 3 refers to the crime of intentional homicide and intentional injury. In other words, if a serious harm case committed by a minor who has reached the age of 12 but not the age of 14 includes intentional homicide and intentional injury, the crime shall be determined in accordance with the provisions of Paragraph 3, Article 17 of the Criminal Law. For example, 13 year old A killed the victim by cruel means after raping the victim B. If the circumstances are bad, it can be evaluated as intentional homicide. The reason why the criminal law requires people who have reached the age of 12 but not the age of 14 to bear criminal responsibility for these two kinds of criminal acts is that people who have reached the age of 12 but not the age of 14 have the cognitive ability to kill and hurt acts and the serious harmfulness of such criminal acts. On the one hand, these two criminal acts are further restrictions on the eight criminal acts committed by minors who have reached the age of 14 but not the age of 16. Because they involve direct infringement on the legal interests of other people's life and major health, the severity of their criminal acts can be more recognized by ordinary people. People who have reached the age of 12 but not the age of 14 have the ability to identify and control intentional homicide and intentional injury. They can not only understand the content, social significance and results of their own homicide and injury, but also have the ability to control themselves not to commit homicide and injury. On the other hand, people who have reached the age of 12 but not the age of 14 also have the possibility of illegal awareness and expectation of intentional homicide and intentional injury. When they commit homicide and injury, they can realize that their actions are illegal, and then control themselves not to commit such illegal acts. Third, on criminal consequences. The result of crime is another restriction on substantive elements besides crime. The third paragraph of Article 17 of the Criminal Law adds the result element of "causing death or serious injury and serious disability by special cruel means" to serious harm cases against minors who have reached the age of 12 but not the age of 14. This shows that the criminal consequences of "inflicting serious injury and serious disability by special cruel means" and "inflicting death" are equivalent. Those who commit intentional homicide or inflict serious injury and serious disability by special cruel means may be investigated for criminal responsibility. The law stipulates that the consequences of "serious injury and serious disability" are caused by "special cruel means". The "special cruel means" should be identified according to the tools, ways and means used by the crime, the location of the injury, the duration and frequency, the pain suffered by the victim, and the general criteria of social cognition. Fourth, the plot is bad. From the perspective of China's legislative provisions, some of the bad circumstances belong to the elements of incrimination, and some belong to the sentencing circumstances of specific crimes or the elements of legal punishment upgrading. However, the bad circumstances specified in paragraph 3 of Article 17 are different from them. The bad circumstances here do not refer to the circumstances of sentencing or the elements of statutory sentence upgrading, but the elements of approval for prosecution. Of course, it is also one of the elements of criminal responsibility for people who have reached the age of 12 but not the age of 14. It is a comprehensive evaluation of the elements of the whole case. From the perspective of case handling in China's practice, the following factors are mainly considered in the determination of bad circumstances, which can also be used as a reference for handling serious harm cases committed by minors who have reached the age of 12 but not the age of 14. On the one hand, it is the subjective factors of the actor, such as the motive and purpose of the crime, and the pattern of subjective intention. For example, in a case of intentional homicide and rape, the defendant, fearing that his theft would be exposed, killed the victim with a knife and stabbed the victim twice in the back with his son on the scene. After the victim was injured and fell to the ground, he committed rape, fled from the scene and returned to confirm whether the victim had the possibility of survival. After that, he locked the door of the victim's home and blocked the external rescue, indicating that he actively pursued the result of the victim's death. On the other hand, it is the actor's objective factors. First, the factors related to special cruel means. Including but not limited to: (1) ways and means of behavior. At the normative level, causing serious injury and serious disability by particularly cruel means means "deliberately damaging others by disfigurement, gouging eyes, cutting off feet and other particularly cruel means to cause serious disability." In judicial practice, deliberately gouging eyes, ears, nose, tendons, hands and feet, gouging out the patella, deliberately cutting the face with a knife, and using corrosive liquids such as sulfuric acid to destroy people's appearance, Electric shock, scalding, and the use of foreign objects to insert into other people's privacy or vital parts are generally considered to be particularly cruel methods. For some cases, even if the perpetrator does not use the above means, it can also be considered as a particularly cruel means. For example, if the methods and methods used by the perpetrator have caused extreme pain, fear, humiliation or violated the bottom line of human relations to the victim, it can also be considered as a particularly cruel means. (2) Use tools that are seriously harmful, cause the victim extreme pain, extreme fear or go against the bottom line of human relations. For example, use highly corrosive liquids such as sulfuric acid to hurt victims, and use tools of extreme pain and fear to hurt victims. (3) The frequency, frequency, duration, repetition and regularity of the injury to the victim. For example, multiple injuries, continuous injuries, frequent injuries, etc. (4) The specific part of the victim's body targeted by the infringement. For example, hurt the part where the victim feels extreme pain or humiliation. Second, the factors related to the seriousness of criminal consequences. For example, it causes death, body organ defect of the victim, obvious organ deformity, relatively serious dysfunction of body organs, serious complications, death or disability of two or more people, and extreme pain or serious psychological damage to the victim, his family, relatives, etc. Third, the factors related to the object of crime. For example, the victims are young children, the elderly, pregnant women, the disabled, and caregivers. Fourth, the factors related to the cause of the case. For example, why did the case arise, whether the victim was at fault, and how was the relationship between the two parties. Fifth, factors such as specific place and time. For example, public places, public implementation, infringement under the witness of the victim's relatives, places, festivals or other times with special significance to the victim and his family. Sixthly, the factors related to the status and role in crime. For example, the organizers, planners, and main perpetrators of joint crimes. In addition, the post crime performance is also a factor to be considered. For example, after committing a crime, in order to escape criminal responsibility, they destroy evidence, intimidate witnesses, forge the scene, frame others, etc. to conceal facts and cover up criminal acts. In a word, if the circumstances are bad, we need to make a comprehensive evaluation according to the situation of the case, comprehensively consider the motive, purpose, means, process, consequences of the crime, the role in the crime, the object, the cause of the crime, the place, time, the performance after the crime, and whether its criminal behavior attacks the basic values of society and challenges the bottom line of social ethics.

3、 Procedural requirements for approval of prosecution

Although the substantive elements are the basis for the generation of the power of punishment, the operation of the approved prosecution procedure directly affects whether minors who have reached the age of 12 but not the age of 14 can finally be prosecuted in accordance with the substantive criminal law. Paragraph 3 of Article 17 of the Criminal Law does not further stipulate the provisions on the approval of prosecution, and the implementation of such provisions cannot be avoided in terms of the subject of application and specific procedures, the materials on which the prosecution is approved and the period of approval. （1） The subject of application and specific procedures The subject of application and specific procedures refer to who submits the application for approval of prosecution and according to which procedure the question is raised. In practice, there may be the following problems: first, which level of procuratorate is the organ to report to; The second is through what procedures and steps to apply. In China's Criminal Procedure Law and relevant judicial interpretations, there are cases involving the approval of the Supreme People's Procuratorate. First, the approval system for continuing the prosecution of cases that have passed the limitation period. Article 320 of the Supreme People's Procuratorate Rules and Article 6 of the Provisions on Several Issues Concerning the Handling of Cases for Verification and Prosecution stipulate that if the maximum punishment prescribed by the law is a crime of life imprisonment or death penalty, and if the period of 20 years for prosecution has expired, if it is deemed necessary to prosecute, the People's Procuratorate at the same level of the investigation organ shall accept the case and report it to the Supreme People's Procuratorate for review and decision. The second is to terminate the prosecution of those who have made major contributions or whose cases involve major national interests. Article 182 of the Criminal Procedure Law and Article 279 of the Supreme People's Procuratorate Rules stipulate that "if a criminal suspect voluntarily and truthfully confesses the facts of a suspected crime, makes significant contributions or the case involves major national interests, the public security organ may revoke the case upon approval of the Supreme People's Procuratorate, and the People's Procuratorate may decide not to prosecute, or may not prosecute one or more of the suspected crimes" 。 The third is the approval system for the trial by default of crimes seriously endangering national security and terrorist crimes. According to Article 291 of the Criminal Procedure Law, Article 505 and Article 506 of the Higher People's Procuratorate Rules, if a criminal suspect or defendant is outside the country and the People's Procuratorate believes that the facts of the crime have been found out and that criminal responsibility should be investigated according to law in cases of serious crimes against national security and terrorist activities that need to be tried in a timely manner transferred by the public security organ, If the procuratorial committee proposes to initiate a public prosecution after discussion, it shall report to the Supreme People's Procuratorate for approval. Such cases shall be prosecuted by the people's procuratorate at the same level of the intermediate people's court with jurisdiction. In addition, the cases that are not approved by the Supreme People's Procuratorate, but need to be reported to the Supreme People's Procuratorate, are particularly serious and complex cases that should not be submitted for trial for a long time as stipulated in Article 157 of the Criminal Procedure Law and Article 314 of the Supreme People's Procuratorate Rules, that is, especially serious and complex cases that should not be submitted for trial for a long time by lower procuratorial organs due to special reasons, The Supreme People's Procuratorate shall report to the Standing Committee of the National People's Congress for approval of the extension of hearing. Through comparison, we believe that the relevant provisions submitted to the Supreme People's Procuratorate (for approval) have the following characteristics: first, as far as the case itself is concerned, most of the cases are major, complex, high social concern, and have a large scope of influence. Once they are not handled properly, negative public opinion may arise. Therefore, in order to make a prudent decision, the law stipulates that the procuratorate at the municipal level shall be the reporting organ. Second, for the purpose of regulation, although the court enjoys the final jurisdiction of the case, the judgment of the procuratorial organ on the direction of the case will also have an important impact on the final outcome of the case. Therefore, in order to prevent the arbitrary exercise of the state's right of prosecution from interfering with citizens' basic rights, the law adopts the method of reporting to the public for approval, and filters out the cases that do not have the necessity of approval level by level through strict hierarchical checks. Third, in terms of the approval result, the prosecutor, based on the obligation of objectivity and impartiality, integrates the evidence and facts of the whole case in the approval procedure to confirm whether the state's criminal power over the prosecuted person exists, and then makes the decision of approval or disapproval. The result may have beneficial or adverse effects on the criminal suspect and defendant. Based on the above analysis, we can draw the following conclusions: First, the people's procuratorate of a city divided into districts can bring up the organ for approval. For one thing, the fact of a serious harm case committed by a minor who has reached the age of 12 but not the age of 14 may not be complicated, and the suspect can usually be identified soon after the case is committed, but such cases are easy to attract social attention and have a greater social impact. Therefore, how to balance the protection of victims' rights with the protection of minors' rights, public opinion and judicial justice has become a problem that has to be faced when dealing with such cases. The People's Procuratorate of a city divided into districts, as the organ submitting the application for approval, reflects its prudence in such cases, which is conducive to eliminating the impact of local pressure and public opinion. This practice is also reflected in cases investigated by procuratorial organs themselves and criminal cases of first instance under the jurisdiction of intermediate people's courts. For example, according to the Provisions of the Supreme People's Procuratorate on Several Issues Concerning the Filing of Cases by People's Procuratorates to Investigate Cases of Judicial Staff Related to Duty related Crimes, criminal cases investigated by the people's procuratorates themselves are filed and investigated by the people's procuratorates of cities divided into districts. If a basic people's procuratorate finds a clue to a crime, it shall report it to the people's procuratorate at the level of a city divided into districts and decide to file a case for investigation. In addition, according to the provisions on hierarchical jurisdiction in the Criminal Procedure Law of China, the intermediate people's courts have jurisdiction over cases that endanger national security, terrorist activities, and may be sentenced to life imprisonment or death. All of these reflect the requirements for serious and special cases to be handled carefully. For this reason, the people's procuratorate at the city level divided into districts should be the organ for approval of serious harm cases committed by minors who have reached the age of 12 but not the age of 14. If the basic people's procuratorate receives a case transferred by the public security organ at the same level, it should report to the people's procuratorate at the city level to decide whether to report. Second, compared with the grassroots people's procuratorates, the municipal procuratorial organs have a more comprehensive and macro grasp of the serious harm cases committed by minors throughout the city, which helps to unify the benchmark and scale of discretion. Moreover, the municipal procuratorate, as the main body of the application, can concentrate on the use of limited judicial resources to improve the quality and efficiency of handling cases. Moreover, from a professional point of view, the municipal procuratorial organs have advantages over the grass-roots people's procuratorates in terms of both the construction of uninspected departments and the quality of case handlers. The procedures and steps of the application for approval shall be reported to the provincial procuratorial organ first by the municipal procuratorial organ, and then by the provincial procuratorial organ to the Supreme People's Procuratorate. If the procuratorial organ at the provincial level considers that there should be no prosecution, it may veto the decision of the procuratorial organ at the lower level and no longer report it to the Supreme People's Procuratorate. This is because, according to the theory of procuratorial integration, the higher procuratorial organs have the right to instruct the lower procuratorial organs. The procuratorial power has the characteristics of hierarchy and unity in its operation mode, so as to realize the reasonable operation of procuratorial power and the overall fairness and justice. On the contrary, it can also be understood that direct reporting violates the basic law of the operation of procuratorial power and oversteps the leadership relationship between the superior and subordinate procuratorial organs. The result is that it objectively reduces the process of review and filtering by the procuratorial organ at the next higher level, which may lead to the unnecessary approval of cases to enter the Supreme People's Procuratorate and waste unnecessary judicial resources. In addition, the reason why the law stipulates "approval" means that the application procedure should be checked level by level, and the municipal people's procuratorate cannot directly report to the Supreme People's Procuratorate. （2） The materials on which to approve the prosecution basis and the examination and approval of cases of serious harm to young minors during the approval period should be based on solid evidence, factual basis and accurate legal evaluation. Juvenile justice has the generality of judicial laws, and the case file evidence materials used to evaluate the perpetrator's harmful acts in general cases to determine criminal responsibility should naturally become the basis for approving prosecution. At the same time, juvenile justice has its particularity. It takes "behaviorism" as the main feature, and pays attention to the incentives and corrections of abnormal psychology and behavior. Therefore, social investigation reports, psychological assessment reports, risk assessment reports, and whether the perpetrator and the victim have reached an understanding should be taken as the evaluation basis to comprehensively measure the necessity of prosecution. Although the cases of serious harm committed by minors who have reached the age of 12 but not the age of 14 conform to the elements of crime, result, plot, etc., the Supreme People's Procuratorate does not necessarily approve the prosecution, otherwise there is no need to set up a separate approval procedure. The approval procedure is not only a substantive review of the above elements, but also a review and judgment of the necessity of the approval of prosecution. That is, if the application of special remedial education is still not enough to reduce the possibility of recidivism and social harm after comprehensive assessment, the prosecution shall be approved. The basis for review and judgment mainly includes social investigation report, psychological assessment report, risk assessment report, and whether the perpetrator and the victim have reached an understanding. Specifically, the social investigation report should include personal basic information, social life conditions, information related to suspected crimes and other contents that should be investigated. The psychological evaluation report should also be used as the basis for evaluation and special correction education. The reconciliation between the minor offender and the victim should be the reference basis for reporting or approving the prosecution, but not the only factor in the decision. If the two parties fail to reach an understanding, the approval decision cannot be made only based on the willingness of the victim to prosecute. Since the approval of prosecution is related to the trend of the case, and the minor perpetrators are generally in a state of control, the approval of prosecution should be carried out in a timely manner without delay, so it is very necessary to set a reasonable period. The setting of this period should consider three factors: first, to ensure the circulation of the procedures of the superior and subordinate procuratorial organs; second, to ensure that the procurators have sufficient time to review the case files; third, to reserve time for the procurators to go to the place where the case occurred when necessary to learn about the situation of the case. To sum up, the author believes that the period of approval of such cases can be compared with the period of review and prosecution by the procuratorial organ and the period of approval to restart the limitation of prosecution. Specifically, the local people's procuratorate shall report to the Supreme People's Procuratorate within 10 days after accepting a case of serious harm committed by a minor who has reached the age of 12 but not the age of 14; The Supreme People's Procuratorate shall make a decision within one month after accepting it, which may be extended for 15 days under special circumstances.

4、 Evidence collection and mandatory control measures before approval of prosecution
If the state specialized agency implements compulsory punishment and then interferes with the basic rights of citizens, it must have a clear basis in law, and should strictly follow the relevant elements set by law, otherwise it may infringe on the basic rights of citizens. This principle should also be followed in approving cases of serious harm committed by minors who have reached the age of 12 but not the age of 14, involving the procedures of evidence collection and mandatory control measures before the approval of prosecution. （1） After discovering the facts of the case by means of evidence collection, the public security organ must immediately investigate the case according to law. It can be divided into two situations. One is that the perpetrator is not clear after the crime, and if the conditions for criminal case filing are met at this time, the public security organ should file a case for investigation according to law. If in the process of investigation it is found that the perpetrator is a minor who has reached the age of 12 but not the age of 14, can we continue to take the investigation measures in the Criminal Procedure Law? Is the evidence material obtained evidential? The author believes that since the case has not been approved for prosecution by the Supreme People's Procuratorate at this time, the case does not meet the conditions for prosecution as a criminal case, and it is not appropriate to take compulsory measures, but it does not affect the evidence ability of the evidence materials obtained previously. Because the purpose of investigation is to initiate public prosecution and investigate serious harm cases committed by minors who have reached the age of 12 but not the age of 14. The purpose of investigation is to find out the truth of the case, so as to determine whether to report to the Supreme People's Procuratorate for approval of prosecution. Moreover, at the beginning of the case, because the perpetrator was not clear, the previous criminal case filing and investigation procedures certainly conformed to the procedures for handling general criminal cases, and the evidence collection procedures adopted in accordance with the Criminal Procedure Law were more standardized, and there was no issue of personal coercive measures before the perpetrator was clear. Therefore, The conversion of procedures should not affect the evidential capacity of the evidence materials. However, the fact that the investigation cannot be carried out according to the criminal case does not mean that the investigation of the case facts is prohibited. Theoretically, investigation can be divided into compulsory investigation and arbitrary investigation. The difference between the two lies in whether coercive measures are used in the investigation process. In accordance with the principles of criminal procedure law and practices prevailing outside the country, compulsory investigation measures need to be clearly stipulated by law, and judicial officers need to issue warrants, while there is no special restriction on arbitrary investigation laws. For the investigation and evidence collection of serious harm cases carried out by minors who have reached the age of 12 but not the age of 14, evidence can be collected through arbitrary investigation measures according to the theory of arbitrary investigation. China also has similar legal provisions. For example, Paragraph 2 of Article 174 of the Provisions on the Procedure of Public Security Organs in Handling Criminal Cases stipulates that in the process of investigation and verification, the public security organs may, in accordance with relevant laws and regulations, take measures that do not limit the personal and property rights of the investigated objects, such as questioning, inquiry, inspection, identification and obtaining evidence materials. In accordance with the provisions of the People's Police Law, investigation methods such as interrogation and inspection may also be adopted that do not restrict personal freedom. In addition, according to the theory of arbitrary investigation, with the consent of the criminal suspect or other relevant obligees, even without a search warrant or warrant, the person, residence or office can be searched, and relevant materials and articles can be seized for the purpose of preserving evidence. In addition to arbitrary investigation measures, administrative investigation measures can also be taken according to relevant laws. According to the provisions on administrative investigation measures in the Provisions on the Procedure of Public Security Organs Handling Administrative Cases, administrative investigation measures for people include inquiry, inspection, identification, etc., and administrative investigation measures for objects include inspection, appraisal, etc. The second situation is that after the case was committed, it was found that the perpetrator was a minor who had reached the age of 12 but not the age of 14. In this case, since the Supreme People's Procuratorate has not yet approved the prosecution, the case cannot be filed for investigation as a criminal case, but it still needs to collect evidence according to law, find out the facts, and prepare for the application for approval and prosecution. Specifically, as mentioned above, evidence can be collected in accordance with the provisions on investigation procedures and arbitrary investigation measures, such as the Law on Administrative Penalties for Public Security, the People's Police Law, and the Provisions on Procedures for Public Security Organs to Handle Administrative Cases. （2） According to the requirements of the principle of legal reservation, compulsory control measures cannot be taken against minors who have reached the age of 12 but not the age of 14 before the Supreme People's Procuratorate approves the prosecution. However, for some minors who may commit new harmful acts, have a real danger of endangering public security or social order, may destroy or forge evidence, interfere with witnesses' testimony or collude with confessions, may retaliate against victims, informants and accusers, and attempt to commit suicide or escape, Not taking some restrictive measures is not enough to prevent personal and social risks. According to the provisions of the Law on the Prevention of Juvenile Delinquency, serious harm cases committed by minors who have reached the age of 12 but not the age of 14 are serious bad behaviors, and the measures specified in the Law on the Prevention of Juvenile Delinquency can be taken against such minors. Specifically, Article 41 of the Law on the Prevention of Juvenile Delinquency stipulates that the public security organ may, according to the specific circumstances, educate, supervise and control minors in appropriate places by social organizations and relevant institutions. Paragraph 1 of Article 45 stipulates: "If a minor commits an act specified in the Criminal Law and does not receive criminal punishment because he is not under the legal age of criminal responsibility, the education administrative department, together with the public security organ, may decide to give him special corrective education after evaluation and consent of the Special Education Steering Committee." Accordingly, the public security organ, before the Supreme People's Procuratorate approves the prosecution, The perpetrator may be subject to disciplinary measures or special remedial education according to law. Because even if the minor is not finally approved for prosecution, according to the provisions of the Criminal Law and the Law on the Prevention of Juvenile Delinquency, the treatment measures stipulated in the Law on the Prevention of Juvenile Delinquency should also be applied in accordance with the law.