Responsible persons of relevant departments of "two high schools and two departments" answered reporters' questions on "implementation measures for sealing up juvenile criminal records"

    Source: Official Website of the Ministry of public security

    Recently, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security and the Ministry of Justice jointly issued the measures for the implementation of sealing up juvenile criminal records (hereinafter referred to as the implementation measures) It will come into effect on May 30, 2022. In order to better understand and apply the implementation measures, the person in charge of the Research Office of the Supreme People's court, the ninth procuratorial Office of the Supreme People's Procuratorate, the Criminal Investigation Bureau of the Ministry of public security and relevant departments of the Ministry of justice were interviewed by reporters.

    Q: we can see that the criminal procedure law only stipulates that "If a person is under the age of 18 at the time of committing a crime and is sentenced to less than five years of fixed-term imprisonment, the relevant criminal records shall be sealed up." however, the implementation measures lists a lot of the scope of sealing up. Does such a provision break through the law? How did the procuratorial organs take the lead in drafting the implementation measures?

    A: The establishment of criminal record sealing system in criminal procedure law is conducive to the elimination of label effect caused by criminal record and return to the society for minor delinquency, and also conducive to the promotion of good social governance. Procuratorial organs have always attached great importance to the sealing up of juvenile criminal records. As early as In 2017, the guidelines for juvenile criminal prosecution work (Trial Implementation) made special provisions on this work, detailed the relevant contents of the criminal procedure law at the top design level, and local procuratorial organs worked out implementation rules together with relevant departments to further standardize the working procedures. In 2021, the Supreme People's Procuratorate specially formulated and issued a sample seal for sealing criminal records, which will further standardize the filing, storage and sealing up of juvenile files together with the archives department. The above measures ensure the sealing effect of the procuratorial link.

    However, at the same time, we also see that although all departments have developed relatively perfect systems, there is no smooth connection between them, and some provisions even conflict with each other. Therefore, we need to unify standards at the national level. Therefore, we started to draft the implementation measures on the basis of special research. In the process of drafting, we did find many problems, such as the provisions of the criminal procedure law However, there is no clear criminal record of "less than 18 years old" when it belongs to "crime record". This leads to some places in judicial practice that juvenile delinquency records, such as absolute non prosecution, conditional non prosecution, relative non prosecution, acquittal, community correction, receiving special education, administrative punishment and so on, do not belong to "criminal records", so they are not in the scope of sealing up, resulting in the leakage of juvenile criminal record materials involved in the case; Some places think that the criminal record is only limited to the final processing results such as judgment and non prosecution, while the process documents such as the records of compulsory measures, filing documents, investigation documents and penalty execution documents are not included in the scope of sealing up, which leads to the improper leakage of various information materials in the process of investigation and prosecution in some cases, and it is too late to seal up after the judgment is made.

    Protection of Minors Act Article 103 stipulates: "public security organs, people's procuratorates, people's courts, judicial administrative departments and other organizations and individuals shall not disclose the names, images, residences, schools of study of minors in relevant cases and other information that may identify their identities, with the exception of searching for missing or abducted minors." Article 59 of the law on the prevention of juvenile delinquency stipulates that: "If a juvenile's criminal record is sealed up according to law, the public security organ, the people's Procuratorate, the people's court and the judicial administrative department shall not provide it to any unit or individual, except that the judicial organ needs to handle the case or the relevant unit inquires in accordance with the relevant provisions of the state. The unit or individual that inquires according to law shall keep the relevant record information confidential The provisions of the preceding paragraph shall apply to the records of special corrective education, special education, administrative punishment, criminal compulsory measures and non prosecution. " Therefore, in view of the above-mentioned problems, Article 2 of the implementation measures clearly stipulates that "the juvenile criminal records that should be sealed up include all the case files and electronic file information related to juvenile crimes or suspected crimes formed in the process of investigation, prosecution, trial and criminal execution", Article 3 further stipulates that "records of no criminal punishment, no investigation of criminal responsibility, no prosecution, adoption of criminal coercive measures, and records of social investigation, assistance and education investigation, psychological counseling, judicial assistance and other work of minors involved in crimes shall be sealed up in accordance with the contents and procedures stipulated in these measures.". To refine the scope of storage is not only to consider the possible impact and reduce the inquiry and leakage of relevant records of social evaluation of minors involved in the case, but also a specific measure to implement the law on the protection of minors and the law on the prevention of juvenile delinquency. In particular, in view of the lack of separate entry, management and encryption of juvenile delinquency cases in the online system, the measures for implementation specifically stipulates that electronic file information should also be sealed, That is, Article 10 stipulates that "for the juvenile criminal record data that needs to be sealed up in the electronic information system, it shall be added with a seal mark, and information query, sharing and reuse shall not be conducted without legal inquiry procedures. The sealed juvenile criminal record data shall not be provided or connected to the external platform". Ensure that all file materials are sealed in place. In the next step, the procuratorial organs should conscientiously perform the power of procuratorial supervision over the sealing up of criminal records, so as to ensure that the implementation measures are effective.

    It should be emphasized that minors are not fully mature in body and mind, and special priority should be given to the protection according to law. However, in practice, we should also adhere to the principle of temper justice with mercy, and focus on education, persuasion and rescue for minor crimes; Those suspected of serious crimes shall be arrested and prosecuted according to law. If the term of imprisonment exceeds five years, the criminal records shall not be sealed up according to law.

    Q: in judicial practice, the public security organs have more items to inquire about criminal records. What are the considerations of the public security organs in implementing the implementation measures in the next step?

    A: The Ministry of public security has always attached great importance to the inquiry of criminal records. In December 2021, on the basis of full investigation and demonstration, and through access to the criminal judgment data of the Supreme People's court, the "national criminal record information system" was established, and the "provisions on the work of public security organs in handling criminal record inquiry" (hereinafter referred to as the "provisions") was issued, which made it clear that the criminal records shall be subject to the judgment documents of the people's court, The people issue the "certificate of no criminal record" to realize "cross provincial general office", which can be handled in the place of household registration and residence, providing convenience for the masses.

    In terms of the sealing up of juvenile criminal records, the provisions No There are special provisions in Article 10, "For individual inquiries, if the applicant has a criminal record, but the applicant is under the age of 18 at the time of committing the crime and is sentenced to a fixed-term imprisonment of not more than five years, the accepting unit shall issue a certificate of no criminal record If a unit inquires that the inquired object has a criminal record, but he is under the age of 18 at the time of committing the crime and is sentenced to a penalty of not more than five years' fixed-term imprisonment, the accepting unit shall issue a letter of inquiry notification, and state that the inquired object has no criminal record. If there are other provisions in the law, such provisions shall prevail. " The implementation measures further clarify the seal up of criminal records, and especially emphasizes that both paper materials formed in the process of handling cases should be sealed, as well as relevant electronic data. According to the requirements of the implementation measures, the public security organs in all localities will strictly implement the principle of "sealing up completely". At the same time, the implementation measures also further refine the inquiry of criminal records of juveniles involved in the case, which is an important supplement and improvement to the "provisions". Public security organs in all localities will also strictly implement the measures, so as to help the juveniles who commit crimes and wrongs successfully enter school, get employed and return to society.

    Q: in order to protect the effect of the court on the sealing up of juvenile information involved in the case, what are the perfect provisions in the implementation measures?

    A: The seal up system of criminal record is an important legal system to educate and save minor delinquent juveniles. Its function and significance lies in reducing the influence of minor criminal record on minors returning to society as far as possible, and promoting them to repent and return to the right track. All along, the people's court attaches great importance to the judicial protection of minors and earnestly implements the system of keeping criminal records. However, due to the relatively principle of the criminal procedure law, there are still different understandings on some specific operation problems of the criminal record sealing system in practice. After in-depth investigation and demonstration, the implementation measures have made unified and clear provisions on relevant issues. First, it is clear The preservation of criminal records of several crimes committed around the age of 18. That is to say, several acts committed before or after reaching the age of 18 constitute one crime or several crimes to be dealt with at the same time. If the main criminal act is committed before the age of 18, the juvenile criminal record that has been sentenced or decided to execute the penalty of not more than five years' fixed-term imprisonment and is exempted from criminal punishment shall be sealed up according to law. The second problem is that juvenile criminal records are sealed together. According to whether the case is handled separately, specific provisions are made respectively: if the case is handled separately, obvious signs such as "containing sealed information of criminal records" shall be marked on the cover of the unsealed adult files while the materials and information of juvenile files are sealed, and necessary confidentiality measures shall be taken for the relevant information; If the case is not handled separately, the front cover of the whole case file shall be marked with obvious marks such as "containing sealed information of criminal records", and necessary confidentiality measures shall be taken for the relevant information. The third is to make clear regulations on how to deal with the sealed criminal records when committing intentional crimes after adulthood. For juveniles whose criminal records have been sealed up and committed intentional crimes after they have reached adulthood, comprehensive consideration should be given to such factors as the purpose of setting up the system of sealing up criminal records, the transformation of the defendant's former crime, and the subjective malignancy of the latter crime. The implementation measures clearly stipulates that the people's court shall record their previous criminal records in the judgment documents.

    The promulgation of the "implementation measures" will certainly contribute to the more comprehensive and accurate implementation of the criminal record sealing system, and will help to give full play to the important functions of the system.

    Q: criminal execution is an important link in the sealing up of juvenile criminal records. What are the considerations of the Ministry of justice in implementing the implementation measures in criminal enforcement?

    A: The seal up system of juvenile criminal record is an important system to protect the legal rights and interests of minors in criminal justice. All along, the Ministry of justice has attached great importance to the privacy and information protection of juvenile delinquents, strictly implemented the criminal procedure law, community correction law and other relevant laws and regulations, and conscientiously sealed up juvenile criminal records, creating a good legal environment for safeguarding the healthy growth of minors.

    In order to further standardize the sealing up of juvenile criminal records in criminal execution, the Ministry of justice will guide the judicial administrative organs in all localities to earnestly study and implement the work The implementation measures on the sealing up of Juvenile Criminal Records issued by the "two high schools and two ministries" organized relevant publicity and training, strengthened the connection and cooperation with public, procuratorial and legal departments, standardized working procedures, and ensured the effective protection of the legitimate rights and interests of juvenile criminals. Mainly do the following three aspects of work: first, do a good job in the timely and comprehensive storage of criminal records. Article 13 of the implementation measures clearly stipulates the contents and time limit of sealing up criminal records in criminal execution, that is, "for juvenile criminals who are sentenced to public surveillance, announced probation, parole or temporarily executed outside prison, community correction institutions at the place of execution shall seal up the criminal records of juveniles involved in the case within three days after the completion of criminal execution". The Ministry of justice will guide the judicial administrative organs in all localities to implement the principle of timeliness and effectiveness, seal up all files and electronic archives related to juvenile delinquency formed in the process of criminal execution according to law, establish and improve a strict custody system, and ensure the sealing effect is in place. Second, strictly handle the inquiry of sealed criminal records according to law. The implementation measures make detailed provisions on the subject, procedure and the form of issuing certificates for sealing up criminal records. The Ministry of justice will guide the local judicial administrative organs to strictly examine the legality of the inquiry reasons, basis and scope of use, handle the relevant inquiry work in strict accordance with the legal procedures, strictly require the signing of confidentiality undertaking, and issue the criminal record certificate within the legal time limit according to law, Ensure that the rights and interests of minors are protected in place. Third, strengthen the implementation of confidentiality measures and confidentiality responsibilities. The Ministry of justice will guide the judicial administrative organs in all localities to implement the confidential management of the files related to the sealing of criminal records and the encryption of electronic archives information, strictly implement the confidentiality requirements of relevant staff, and establish and improve the responsibility system, In case of improper or improper disclosure of criminal information by law, the responsibility of those who fail to disclose relevant criminal information shall be investigated.