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1. Overview of amendment to the Juvenile Law
The Juvenile Law, which was enacted in 1948, was an innovative law based on the concept of protection of juveniles. However, half a century has passed since the Law was enacted, and in the meantime, society has also changed. Therefore, it has been pointed out that the provisions of the Law have not been adapted to the current situation. Also, a rash of major heinous offenses by juveniles has caused strict questioning of the treatment of crime cases involving juveniles and the existence of social fact-finding in the cases thereof, etc. In particular, heinous major offenses by juveniles, which have captured the attention of society, have taken place successively over the last few years, and treatment of crime cases involving juveniles, the appropriateness of judicial proceedings and the demand for protection of victims have been emphasized, which has increased momentum for Amendment to the Juvenile Law. As a result, a bill to amend the Juvenile Law was submitted to the Diet just recently, and the"Law for Partial Amendment to the Juvenile Law, etc. " (Law No.142 of 2000), hereinafter referred to as the"Amended Juvenile Law"in this Chapter)was adopted and established on November 28, 2000, and became effective on April 1, 2001.
While the Amended Juvenile Law maintains the"sound development of juveniles", which is a concept of the Juvenile Law before the amendment (hereinafter referred to as the"Old Juvenile Law"in this Section), it intends to improve the existence of juvenile judicial proceedings and the treatment of juveniles. It thereby attempts to preserve the trust of the public in the juvenile justice system. The following significant points regarding amendment are mentioned:
The Amended Juvenile Law comprises the three pillars below.
(1)Review of the existence of treatment of juvenile cases, etc.
(2)Appropriateness of fact-finding process in the juvenile hearings
(3)Improvement of consideration for victims
(1)Review of the existence of treatment of juvenile cases, etc.a. Review of age classification in the Juvenile Law
(a)Lowering the possible age for criminal punishment
Although Article 41 of the Penal Code provides that those who are 14 years or older are criminally responsible at the time of offenses, the Old Juvenile Law provided that no junior juveniles under 16 at the time of treatment were liable for criminal punishment, no matter how heinous the crimes that they had committed (proviso of the Old Juvenile Law, Article 20). However, in light of the major heinous crimes committed by the juveniles in such age groups, and the concern thereof, and in order to reveal that even the juveniles in such age groups could be possibly liable for punishment when they commit crimes as well as to encourage juveniles to become aware of their responsibility in society and grow soundly, the possible age for criminal punishment matched the age of criminal liability, and the minimum limit was lowered from age 16 to 14 (the Amended Juvenile Law, Clause 1, Article 20).
(b)Execution of imprisonment with or without labor at juvenile training schools
According to the amendment of (a), juveniles who are under 16can be sentenced to imprisonment with or without labor. However, it is thought that in many cases, the execution of sentence focusing on the educational aspect of punishment, to attempt improvement and correction in order for the social rehabilitation of juvenile convicts to be promoted, is appropriate for juvenile convicts who are under 16, considering their age and degree of physical and mental development. In particular, academic education must be focused on for those who are of the age at which compulsory school education applies. Therefore, notwithstanding the stipulations of Clause 2, Article 12, or Clause 2, Article 13 of the Penal Code, the Amended Juvenile Law provides that as for the juvenile convicts under 16 who were sentenced to imprisonment with or without labor, punishment can be given thereto at juvenile training schools until they reach the age of 16. In such cases, labor would not be given even to those juvenile convicts sentenced to imprisonment with labor, and in the meantime, correctional education is supposed to be given (the Amended Juvenile Law, Clause 3, Article 56).
b. Review of the existence of treatment of juveniles who committed major heinous crimes
(a)Transfer to public prosecutor in principle
Actions that cause people to die due to intentional criminal acts are highly antisocial, unethical, and inexcusable in terms of depriving valuable life in order to realize crimes for one's own self. It is thought important to show that even juveniles can be a target of criminal punishment in principle, in the case where such major crimes were committed, in fostering the normative consciousness and preserving the sound development of juveniles. Therefore, it is stipulated that as for crimes that caused victims to die due to intentional criminal acts relating to juveniles who are 16 or over at the time the crimes were committed (i. e. , homicide, bodily injury resulting in death, robbery resulting in death, arrest and confinement resulting in death, etc. ), determination must in principle be made in such cases to transfer them to public prosecutors (the Amended Juvenile Law, Clause 2, Article 20).
However, even for these types of crime, as a result of investigation by the family courts, giving consideration to motives and patterns of crimes, the situation after crimes, personality, age, behavior, and the environments of juveniles, etc. , no transfer to public prosecutors can be made, while considering the nature of individual crimes and characteristics of juveniles, protective measures could be given thereto (the Amended Juvenile Law, Clause 2, Article 20, proviso).
(b)Exercise of discretion should be enabled for alleviation of life imprisonment for juveniles who are under 18 at the time of crimes.
The Old Juvenile Law stipulated that when sentenced to life imprisonment, juveniles should be imprisoned for a definite term within a range of not less than 10 years but not more than 15. However, for cases that are deemed appropriate for life imprisonment, it would not be appropriate for such cases to always be mitigated. Therefore, whether life imprisonment or a definite term should be given can be decided by the courts (the Amended Juvenile Law, Clause 2, Article 51).
(c)Non-application of special provisions of possible period for parole in the case where a capital punishment was mitigated and life imprisonment was given.
In general, concerning life imprisonment, unless 10 years have passed, parole is not allowed (Penal Code, Article 28). However, in cases where life imprisonment is given to juveniles, the Old Juvenile Law mitigated the requirements for grant of parole in light of their high flexibility, and stipulated that they were eligible for parole after 7 years had passed (Old Juvenile Law, Number 1, Article 58). Furthermore, since the Old Juvenile Law stipulated that when an offense punishable by death was committed by those who were below 18 at the time of the crime, life imprisonment should be given (in this point, the same as the Amended to the Juvenile Law, Clause 1, Article 51). In such cases, where a capital punishment was mitigated and life imprisonment was given, if the period of parole was mitigated, the punishments resulted in being doubly mitigated. However, under such circumstances, juveniles punishable by death can be returned to society in a considerably short period, which was not appropriate in terms of the balance of punishment and crime, victims'emotions, and public sentiment. Therefore, the Amended Juvenile Law provided that when a capital punishment was mitigated and a life imprisonment was given, special provisions of the parole period would not be applied (the Amended Juvenile Law, Clause 2, Article 58).
c. Measures for guardians
In order to prevent repeat crime of juveniles and promote their sound development, protective measures should be given to juveniles, but also, it is necessary to prompt the guardians of such juveniles to realize their responsibility, and to undertake endeavors for the improvement and correction of juveniles. Therefore, the family court and the family court probation officer have in practice given admonition and guidance, etc. to guardians. However, the Amended Juvenile Law expressly provides that the family court and the family court probation officer can provide admonitions and guidance, or other appropriate measures to guardians, expecting that judges, etc. will further actively take measures, such as admonition, and repeat crime in juveniles should be prevented (the Amended Juvenile Law, Article 25-2).
d. Method of hearing
Clause 1, Article 22 of the Old Juvenile Law stipulated that"a hearing must be performed in a cordial manner, and in a relaxed atmosphere. "This stipulation is based on the fact that proceedings for juvenile hearings themselves protect and educate juveniles. To this effect, hearings were supposed to be performed under circumstances where juveniles and their guardians could trust such system and understand it easily, in line with the age or personality of juveniles. Even under such provisions, it was thought to be natural that when sincere reflection must be necessarily urged for such juveniles, hearings should be performed with a firm attitude. However, such effect was not clear in the wordings of the provision, and in fact, the word"relaxed"tended to give the impression of spoiling juveniles. Therefore, the Amended Juvenile Law expressly stipulated that"hearings must be performed in a cordial manner, and in a relaxed atmosphere, and must encourage delinquent juveniles to reflect on their own delinquency. " (the Amended Juvenile Law, Clause 1, Article 22).
(2)Appropriateness of fact-finding process in juvenile hearings
a. Introduction of collegiate court system
Article 31-4 of the Court Organization Law before its amendment provided that the cases disposed by the family courts should be handled by one judge, unless otherwise specified. However, as juveniles cases are becoming more complicated and difficult to resolve, it would be appropriate that cases be dealt with by the collegiate court system, according to the case, and judgment of hearing should be performed based on multiple aspects as a system, rather than the situation where all cases should without fail be dealt with by only one judge. Therefore, although in principle the family court performs a hearing, or examination and trial by one judge alone, in addition to adopting the collegiate court system under other laws and regulations, the cases in which a decision to perform a hearing, or examination, and trial by a collegiate system was made should be dealt with by a collegiate system, and a collegiate court system has been introduced into juvenile hearings (Court Organization Law, Article 31-4).
b. Introduction of hearings involving attendants as public prosecutors and lawyers
Cases with problems for verifying delinquent facts necessitate measures to preserve multiple aspects concerning collection and examination of evidence, and to avoid conflict between judges and juveniles. Also, from the aspect that it is necessary to preserve the trust of the public, including victims, concerning the fact-findings process, the Amended Juvenile Law provided that public prosecutors could be involved in juvenile hearings in certain cases. This is to say, in cases relating to juvenile delinquents and concerning (a)crimes that caused victims to die due to intentional criminal acts, or (b)in addition to the aforementioned (a), crimes that apply to capital punishments, or life imprisonment, or an offense punishable with a short-term punishment of more than 2 years imprisonment with or without labor, if it is deemed necessary for public prosecutors to be involved with the proceedings of hearings in order to verify the facts of the delinquency, the family court can determine the involvement of the public prosecutors. In such cases, the public prosecutors may inspect or copy the records and evidence of the cases in accordance with the Rules of the Supreme Court, to the necessary extent, and may present the proceedings of hearings, question juveniles and witnesses or other relevant parties, and state their opinions (the Amended Juvenile Law 22-2).
Furthermore, in cases that public prosecutors are involved with proceedings of hearings for juveniles, a lawyer should be provided as an attendant to protect the interests of juveniles, in order to create balance. In the case where the decision is made for public prosecutors to be involved, if there is no lawyer provided as an attendant for juveniles, the family court can give a public attendant on its authority (the Amended Juvenile Law, Article 22-3).
c. Extension of protective detention period
The Old Juvenile Law provided that the term of protective detention period of admittance of juveniles to juvenile classification homes could not exceed2weeks. The term of commitment may be renewed only once when special circumstances require continued detention, and the period may not exceed four weeks in total (Old Juvenile Law, Clause 3, Article 17). However, there are many cases that need a considerable number of days for examination, such as when the necessity for examining a large amount of evidence arises, and it would be difficult to finish such hearings within 4 weeks at maximum. In such cases, there could up to now be no recourse except to continue hearings by releasing the juvenile from custody under the system, and apprehension of escape or suicidal actions or destruction of evidence committed by juveniles could not be avoided. Therefore, in order to prevent such situations, perform precise fact-finding, and determine the treatment that is the most suitable for juveniles, the protective detention period can be extended up to 8 weeks in total (the Amended Juvenile Law, Clauses 3, 4, and 9, Article 17).
Moreover, in accordance with the extension of the protective detention period, in order to make the judgment of acceptance of custody for juveniles more appropriate, a protest system has been newly created concerning the decision of protective detention and renewal (the Amended Juvenile Law, Article 17-2 and Article 13-3).
d. System for making appeal for acceptance
The Old Juvenile Law only granted an appeal for a decision of protective measures, and only on the side of the juveniles. However, the public, including the victims, would not understand if there was no opportunity in other than such cases for the review of superior courts with respect to hearings by the family courts. Therefore, the Amended Juvenile Law provided that in order to preserve the opportunity for review at superior courts, such as regarding major and false verification of facts, a system whereby cases are accepted for appeal has been introduced for cases involving a decision of public prosecutors if high courts deems it as appropriate, according to the allegation of public prosecutors (the Amended Juvenile Law, Article 32-4).
e. Arrangement of relief proceedings after completion of protective measures
After the completion of protective measures, if expressive materials are newly discovered showing that protective measures have been taken despite the fact that there were no reasons for the commencement of the hearing, proceedings may be taken to revoke the protective measures (the Amended Juvenile Law, Articl e27-2).
(3)Fulfillment of consideration for victims
a. Inspection and copying of the records by victims, etc.
Victims, etc. (i. e. , victims, the legal representatives thereof, or the spouse, linear relatives or siblings of a victim in the case where the victim is dead or suffers a serious mental/physical disability;Article 5-2 and 31-2 of the Amended Juvenile Law)often desire to use records of juvenile protection cases when they have filed a lawsuit for compensation for damage. Although such necessity may occur, regardless of whether before or after the final decision of juvenile hearings, there are some cases where such necessity should be allowed to the extent that would not harm the sound development of juveniles. Even under the Old Juvenile Law, in accordance with Clause 1, Article 7 of the Rules of Juvenile Hearing, with permission of the family court, inspection and copying of the records of protective measures were allowed. However, the Amended Juvenile Law expressly provided for the victims'rights to inspect and copy the records of juvenile cases under certain terms and conditions (the Amended Juvenile Law, Article 5-2).
b. Hearing of opinions offered by the victims, etc.
By making the point clear that juvenile hearings should be performed based on emotions and opinions of the victims, etc. (i. e. , victims, the legal representatives thereof, or the spouse, linear relatives or siblings of a victim in the case where the victim is dead;the Amended Juvenile Law, Article 9-2), in order to obtain the trust of the public, including victims, towards juvenile hearings, and to make juveniles recognize the emotions and opinions of victims, etc. and reflect on what they did, and to urge the correction thereof, when victims, etc. offer to state emotions regarding damage and other opinions regarding their own crimes, the family court or family court probation officer would hear such statements. However, considering the nature, investigation, or hearings of cases, when it is deemed inappropriate, the same shall not be applied thereto (the Amended Juvenile Law, Article 9-2).
c. Notification to victims, etc. of results of hearings
Under the Old Juvenile Law, it was pointed out that hearings in the family court are closed to the public, and victims, etc. could not obtain sufficient information about the results of hearings, etc. Therefore, the Amended Juvenile Law introduced a system to notify victims, etc. of the results of hearings by the family court, giving certain consideration to reasonable requests by victims, etc. to know the content and results of disposal of the cases, etc. , in light of consideration for the sound development of juveniles (the Amended Juvenile Law, Article 31-2).