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Interpretation of the Supreme People's Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Involving Minors [Effective]
最高人民法院关于审理未成年人刑事案件具体应用法律若干问题的解释 [现行有效]
【法宝引证码】

 
Announcement of the Supreme People's Court 

最高人民法院公告


The Interpretation of the Supreme People's Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Involving Minors, which was adopted at the 1373rd meeting of the Judicial Committee of the Supreme People's Court on December 12, 2005, is hereby promulgated and shall come into force as of January 23, 2006.
 
《最高人民法院关于审理未成年人刑事案件具体应用法律若干问题的解释》已于2005年12月12日由最高人民法院审判委员会第1373次会议通过,现予公布,自2006年1月23日起施行。

January 11, 2006
 
二00六年一月十一日

Interpretation of the Supreme People's Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Involving Minors
 

最高人民法院关于审理未成年人刑事案件具体应用法律若干问题的解释


(Adopted at the 1373rd meeting of the Judicial Committee of the Supreme People's Court on December 12, 2005, Interpretation No. 1 [2006] of the Supreme People's Court)
 

(法释[2006]1号)


In order to correctly hear the criminal cases involving minors and implement the principle of giving priority to education and taking punishment as a subsidiary, the interpretation on some issues concerning the specific application of law in the trial of criminal cases involving minors is hereby given as follows according to the Criminal Law and other relevant laws:
 
为正确审理未成年人刑事案件,贯彻“教育为主,惩罚为辅”的原则,根据刑法等有关法律的规定,现就审理未成年人刑事案件具体应用法律的若干问题解释如下:

 
Article 1 The "criminal cases involving minors" as mentioned in this Interpretation refers to the cases in which the defendants have reached the age of 14 but not the age of 18 when committing the accused crimes.   第一条 本解释所称未成年人刑事案件,是指被告人实施被指控的犯罪时已满十四周岁不满十八周岁的案件。

 
Article 2 The "full year of life" as prescribed in Article 17 of the Criminal Law shall be calculated according to the year, month and day of the Gregorian calendar, and start from the second day after the birthday of a full year of life.   第二条 刑法十七条规定的“周岁”,按照公历的年、月、日计算,从周岁生日的第二天起算。

 
Article 3 When a criminal case involving a minor is heard, the age when the defendant committed the accused crime shall be found, and the year, month and day of birth of the defendant shall be expressly stated in the court ruling.   第三条 审理未成年人刑事案件,应当查明被告人实施被指控的犯罪时的年龄。裁判文书中应当写明被告人出生的年、月、日。

 
Article 4 Where there is no sufficient evidence proving that the defendant has reached the age for statutory criminal liability when the accused crime is committed and which really can not be verified, it shall be assumed that he has not reached the corresponding age for statutory criminal liability.   第四条 对于没有充分证据证明被告人实施被指控的犯罪时已经达到法定刑事责任年龄且确实无法查明的,应当推定其没有达到相应法定刑事责任年龄。

Where there is sufficient relevant evidence proving that the defendant has reached the age for statutory criminal liability when the accused crime is committed but the specific birth date of the defendant can not be accurately found out, he shall be regarded as having reached the corresponding age for statutory criminal liability.
 
相关证据足以证明被告人实施被指控的犯罪时已经达到法定刑事责任年龄,但是无法准确查明被告人具体出生日期的,应当认定其达到相应法定刑事责任年龄。

 
Article 5 If a person who has reached the age of 14 but not the age of 16 commits an act other than those as prescribed in Paragraph 2 of Article 17 of the Criminal Law and simultaneously violates Paragraph 2 of Article 17 of the Criminal Law光宗耀祖支撑着我去教室, he shall be convicted and punished in term of the crime as prescribed in Paragraph 2 of Article 17 of the Criminal Law.   第五条 已满十四周岁不满十六周岁的人实施刑法十七条第二款规定以外的行为,如果同时触犯了刑法十七条谁敢欺负我的人第二款规定的,应当依照刑法十七条第二款的规定确定罪名,定罪处罚。

 
Article 6 If a person who has reached the age of 14 but not the age of 16 occasionally has sex with a girl under the age of 14 with a minor circumstance and which has not caused serious consequence, the act shall not be considered as a crime.   第六条 已满十四周岁不满十六周岁的人偶尔与幼女发生性行为,情节轻微、未造成严重后果的,不认为是犯罪。

 
Article 7 If a person who has reached the age of 14 but not the age of 16 uses light violence or menace to forcibly demand a small amount of living or studying articles, money or property another minor carries and has not made the latter suffer a minor injury or not dare to go to school or live his life or has not caused any other dangerous consequence, the act shall not be considered as a crime.   第七条 已满十四周岁不满十六周岁的人使用轻微暴力或者威胁,强行索要其他未成年人随身携带的生活、学习用品或者钱财数量不大,且未造成被害人轻微伤以上或者不敢正常到校学习、生活等危害后果的,不认为是犯罪。

If a person who has reached the age of 16 but not the age of 18 is under any of the circumstances as prescribed in the preceding Paragraph, his act shall not be considered as a crime as a general rule.
 
已满十六周岁不满十八周岁的人具有前款规定情形的,一般也不认为是犯罪。

 
Article 8 If a person who has reached the age of 16 but not the age of 18 beats another minor at will, forcibly takes or demands objects of other minors for may times, willfully damages or destroys public or private property, or disturbs the order of a school or any other public place to a serious extent in order to bully the small, domineer over the weak or quest for spiritual stimulation, he shall be convicted and punished in term of the crime of picking quarrels and provoking troubles.   第八条 已满十六周岁不满十八周岁的人出于以大欺小、以强凌弱或者寻求精神刺激,随意殴打其他未成年人、多次对其他未成年人强拿硬要或者任意损毁公私财物,扰乱学校及其他公共场所秩序,情节严重的,以寻衅滋事罪定罪处罚。

 
Article 9 If a person who has reached the age of 16 but not the age of 18 commits the crime of theft for less than three times and the amount of theft has amounted to the criterion of "large amount", and he faithfully confesses all the thefts and actively gives up the stolen money and property after committing the crimes, his act can be verified as "the circumstances are obviously minor and the harm done is not serious" and shall not be considered a crime if he is also under any of the following circumstances:   第九条 已满十六周岁不满十八周岁的人实施盗窃行为未超过三次,盗窃数额虽已达到“数额较大”标准,但案发后能如实供述全部盗窃事实并积极退赃,且具有下列情形之一的,可以认定为“情节显著轻微危害不大”,不认为是犯罪:

 
(1)being a deaf-and-mute or blind person; (一)系又聋又哑的人或者盲人;

 
(2)playing a subordinate or assistant role or being menaced in the joint theft; or (二)在共同盗窃中起次要或者辅助作用,或者被胁迫;

 
(3)having any other minor circumstance. (三)具有其他轻微情节的。

If a person who has reached the age of 16 but not the age of 18 does not accomplish or suspends the crime of theft, his act may not be considered as a crime.
 
已满十六周岁不满十八周岁的人盗窃未遂或者中止的,可不认为是犯罪。

If a person who has reached the age of 16 but not the age of 18 steals the money or property of his own family or close relatives, or steals the money or property of any other relative and the other relative does not require to punish him, his act may not be considered as a crime.
 
已满十六周岁不满十八周岁的人盗窃自己家庭或者近亲属财物,或者盗窃其他亲属财物但其他亲属要求不予追究的,可不按犯罪处理。

 
Article 10 If a person who has reached the age of 14 but not the age of 16 commits the crime of theft, fraud or forcible seizure of money or property and uses violence, intentionally hurts another person to serious injury or death or intentionally kills another person on the spot in order to conceal the booty, resist arrest or destroy criminal evidence, he shall be respectively convicted and punished in terms of the crime of willful and malicious injury and the crime of willful murder.   第十条 已满十四周岁不满十六周岁的人盗窃、诈骗、抢夺他人财物,为窝藏赃物、抗拒抓捕或者毁灭罪证,当场使用暴力,故意伤害致人重伤或者死亡,或者故意杀人的,应当分别以故意伤害罪或者故意杀人罪定罪处罚。

If a person who has reached the age of 16 but not the age of 18 commits the crime of theft, fraud or forcible seizure of money or property and uses violence on the spot or threatens to use violence in order to conceal the booty, resist arrest or destroy criminal evidence, he shall be convicted and punished in accordance with Article 269 of the Criminal Law; if the circumstance is light, he may not be convicted or punished in term of the crime of robbery.
 
已满十六周岁不满十八周岁的人犯盗窃、诈骗、抢夺罪,为窝藏赃物、抗拒抓捕或者毁灭罪证而当场使用暴力或者以暴力相威胁的,应当依照刑法二百六十九条的规定定罪处罚;情节轻微的,可不以抢劫罪定罪处罚。

 
Article 11 When imposing a penalty on a minor criminal, the people's court shall fully consider whether it is good for the education and rectification of the minor criminal.   第十一条 对未成年罪犯适用刑罚,应当充分考虑是否有利于未成年罪犯的教育和矫正。

When measuring sentences to a minor criminal, the people's court shall abide by Article 61 of the Criminal Law, and fully take into consideration the motive and purpose for his crime, the age when he committed the crime, whether he is accused for first offence, his repentance, his growth process and consistent performances, etc. A minor criminal in line with the conditions for applying public surveillance, probation, sole fine or exemption of criminal liability shall be sentenced to public surveillance, probation, sole fine or exemption of criminal liability according to law.
 
对未成年罪犯量刑应当依照刑法六十一条的规定,并充分考虑未成年人实施犯罪行为的动机和目的、犯罪时的年龄、是否初次犯罪、犯罪后的悔罪表现、个人成长经历和一贯表现等因素。对符合管制、缓刑、单处罚金或者免予刑事处罚适用条件的未成年罪犯,应当依法适用管制、缓刑、单处罚金或者免予刑事处罚。

 
Article 12 A person who has committed any act that endangers the society both before and after he has reached the age for statutory criminal liability shall only be subject to criminal liability for the act that endangers the society committed by him after he has reached the age for statutory criminal liability.   第十二条土豪我们做朋友好不好 行为人在达到法定刑事责任年龄前后均实施了危害社会的行为,只能依法追究其达到法定刑事责任年龄后实施的危害社会行为的刑事责任。

If a person has committed different crimes both before and after he has reached the age of 18, he shall be given a lighter or mitigated punishment for the crime he has committed before he has reached the age of 18. If a person has committed homogeneous crimes both before and after he has reached the age of 18, he shall be given a lighter or mitigated punishment by taking into consideration the crime he has committed before he has reached the age of 18 at the sentencing time.
 
行为人在年满十八周岁前后实施了不同种犯罪行为,对其年满十八周岁以前实施的犯罪应当依法从轻或者减轻处罚。行为人在年满十八周岁前后实施了同种犯罪行为,在量刑时应当考虑对年满十八周岁以前实施的犯罪,适当给予从轻或者减轻处罚。

 
Article 13 A minor criminal shall not be sentenced to life imprisonment unless he has committed an extremely serious crime. A criminal who has reached the age of 14 but not the age of 16 shall not be sentenced to life imprisonment as a general rule.   第十三条 未成年人犯罪只有罪行极其严重的,才可以适用无期徒刑。对已满十四周岁不满十六周岁的人犯罪一般不判处无期徒刑。

 
Article 14 Unless the penalty of deprivation of political rights shall be concurrently sentenced as prescribed in the Criminal Law, a minor criminal shall not be sentenced to the accessory penalty of deprivation of political rights.   第十四条 除刑法规定“应当”附加剥夺政治权利外,对未成年罪犯一般不判处附加剥夺政治权利。

If a minor criminal is sentenced to the accessory penalty of deprivation of political rights, he shall be given a lighter punishment.
 
如果对未成年罪犯判处附加剥夺政治权利的,应当依法从轻判处。

When imposing the accessory penalty of deprivation of political rights upon a criminal who is a minor when he committed the accused crime and who has grown into an adult at the time of trial, the people's court shall apply the provisions as set down in the preceding Paragraph.
 
对实施被指控犯罪时未成年、审判时已成年的罪犯判处附加剥夺政治权利,适用前款的规定。

 
Article 15 In case a minor criminal commits a crime for which the confiscation of property or fine shall be concurrently imposed as prescribed by the Criminal Law北大法宝,版权所有, he shall be imposed on the corresponding property-related penalty; in case a minor criminal commits a crime for which the confiscation of property or fine may be concurrently imposed as prescribed by the Criminal Law, he shall not be imposed on the corresponding property-related penalty as a general rule.   第十五条 对未成年罪犯实施刑法规定的“并处”没收财产或者罚金的犯罪,应当依法判处相应的财产刑;对未成年罪犯实施刑法规定的“可以并处”没收财产或者罚金的犯罪,一般不判处财产刑。

A minor criminal shall be given a lighter or mitigated punishment when being imposed on a penalty of fine, and the amount of fine shall be determined in light of the circumstances of his crime and his ability to pay the fine, however, the minimum amount of the fine shall not be less than RMB 500 yuan.
 
对未成年罪犯判处罚金刑时,应当依法从轻或者减轻判处,并根据犯罪情节,综合考虑其缴纳罚金的能力,确定罚金数额。但罚金的最低数额不得少于五百元人民币。

As to a minor criminal who is imposed on the penalty of fine, if his guardian or any other person voluntarily pays the fine for him, the people's court shall allow it.
 
对被判处罚金刑的未成年罪犯,其监护人或者其他人自愿代为垫付罚金的,人民法院应当允许。

 
Article 16 The probation may be granted to a minor criminal who is line with Paragraph 1 of Article 72 of the Criminal Law. The probation shall be granted to a minor criminal if he is concurrently under any of the following circumstances and it is certain that the application of probation will not result in further harm to the society:   第十六条 对未成年罪犯符合刑法七十二条第一款规定的,可以宣告缓刑。如果同时具有下列情形之一,对其适用缓刑确实不致再危害社会的,应当宣告缓刑:

 
(1)committing the crime for the first time; (一)初次犯罪;

 
(2)actively giving up the ill-gotten gains or compensating the victim for the economic losses ; or (二)积极退赃或赔偿被害人经济损失;

 
(3)the conditions for guardianship, help and education are met. (三)具备监护、帮教条件。

 
Article 17 As to a minor criminal who can be sentenced to detention or fixed-term imprisonment of not more than three years in light of the crime he commits, if he shows true repentance and is under any of the following circumstances, he shall be exempted from criminal penalties according to Article 37 of the Criminal Law:   第十七条 未成年罪犯根据其所犯罪行,可能被判处拘役、三年以下有期徒刑,如果悔罪表现好,并具有下列情形之一的,应当依照刑法三十七条的规定免予刑事处罚:

 
(1)being a deaf-and-mute or blind person; (一)系又聋又哑的人或者盲人;

 
(2)unjustifiable self-defense or excessive necessity; (二)防卫过当或者避险过当;

 
(3)preparation, discontinuance or abortion of a crime; (三)犯罪预备、中止或者未遂;

 
(4)being an accomplice or accomplice under duress in the joint offense; (四)共同犯罪中从犯、胁从犯;

 
(5)voluntary surrender or meritorious service after committing the crime; or (五)犯罪后自首或者有立功表现;

 
(6)other minor circumstances and no criminal punishment is required. (六)其他犯罪情节轻微不需要判处刑罚的。

 
Article 18 The standards for commutation or parole to minor criminals may be appropriately relaxed by reference to the standards for adult criminals.   第十八条 对未成年罪犯的减刑、假释,在掌握标准上可以比照成年罪犯依法适度放宽。

In case a minor criminal can admit his guilt, observe prison regulations and take an active part in study and labor, he can be regarded as having shown true repentance and his punishment can be commutated, the extent for commutation can be appropriately relaxed, and the intervals for commutation can be correspondingly shortened. If he is in line with Paragraph 1 of Article 81 of the Criminal Law, he can be paroled.
 
未成年罪犯能认罪服法,遵守监规,积极参加学习、劳动的,即可视为“确有悔改表现”予以减刑,其减刑的幅度可以适当放宽,间隔的时间可以相应缩短。符合刑法八十一条第一款规定的,可以假释。

If a minor criminal grows into an adult when he serves the sentence, the commutation and parole granted to him can apply to the aforesaid provisions.
 
未成年罪犯在服刑期间已经成年的,对其减刑、假释可以适用上述规定。

 
Article 19 Where the minor defendant to a civil case collateral to criminal proceedings has personal property, he shall assume the civil compensation liability by himself, the insufficient part in such compensation shall be appropriately compensated for by his guardian unless the guardian is an entity.   第十九条 刑事附带民事案件的未成年被告人有个人财产的,应当由本人承担民事赔偿责任,不足部分由监护人予以赔偿,但单位担任监护人的除外。

The material losses for which the defendant compensates the victim may be taken into consideration as a circumstance for the discretionary action of sentencing.
 
被告人对被害人物质损失的赔偿情况,可以作为量刑情节予以考虑。

 
Article 20 This Interpretation shall come into force as of the date of promulgation.   第二十条 本解释自公布之日起施行。

The Interpretation of the Supreme People's Court on Some Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Minors (Interpretation No. 9 [1995] of the Supreme People's Court) shall not be implemented as of the date when this Interpretation is promulgated.
 
最高人民法院关于办理未成年人刑事案件适用法律的若干问题的解释》(法发〔1995〕9号)自本解释公布之日起不再执行。
 
     
     
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