Key takeaways:
- Under Chinese laws, the criminal records of a person who is under the age of 18 and sentenced to fixed-term imprisonment of five years or a lighter punishment must be sealed for preservation.
- The main legal bases for the juvenile record sealing system in China are the PRC Criminal Procedure Law, the Law on the Protection of Minors, and the Law on the Prevention of Juvenile Delinquency.
- The Implementing Measures for Sealing Juvenile Criminal Records (2022), jointly issued by China's Supreme People's Court and other authorities, provides detailed standards and operational procedures for sealing juvenile criminal records.
- A judicial organ shall “seal all materials of the minor involved in the case to the maximum extent permitted by law”.
China's Criminal Procedure Law stipulates that where a juvenile has not attained the age of 18 when committing a crime and is sentenced to fixed-term imprisonment of five years or a lighter punishment, the criminal records concerned shall be sealed for preservation.
On this basis, judicial organs in China have established the juvenile criminal records sealing system.
I. Legal Framework
1. Laws
The sealing of juvenile criminal records is mainly embodied in three laws in China. The details are as follows:
China’s Criminal Procedure Law(2018) provides that the criminal records of a person who is under the age of 18 and sentenced to fixed-term imprisonment of five years or a lighter punishment must be sealed for preservation. Where the criminal records of juveniles are sealed, such criminal records shall not be provided to any entity or individual, except for the inquiries by the judicial organs for the purpose of handling cases or the inquiries by the relevant entities according to the relevant provisions of the State.
China’s Law on the Protection of Minors(2020) stipulates that the public security organs, procuratorates, courts, judicial administrative departments and other organizations and individuals shall not disclose the names, images, residences and schools of the minors involved in cases and other information that may identify their identities, except for the circumstances of searching for missing or abducted minors.
China's Law on Prevention of Juvenile Delinquency(2020) stipulates that public security organs, procuratorates, courts and judicial administrative departments shall not provide sealed juvenile criminal records to any entity or individual except for the inquiries by the judicial organs for the purpose of handling cases or the inquiries by the relevant entities according to the relevant provisions of the State. The entities and individuals handling the inquiry in accordance with the law shall keep relevant records confidential.
2. Implementing rules
The above-mentioned laws only provide for the basic principles of sealing up juvenile criminal records, but do not provide for specific rules, which leads to many problems during implementation.
Chinese news media have repeatedly reported cases of improper management of sealed juvenile criminal records. For example, as a result of improper supervision by relevant authorities, some companies have leaked juvenile criminal records by illegally providing, selling, and using such records.
In this regard, on 30 May 2022, China's Supreme People's Court (SPC), Supreme People's Procuratorate (SPP), Ministry of Public Security, and Ministry of Justice jointly issued the “Implementing Measures for Sealing Juvenile Criminal Records” (关于未成年人犯罪记录封存的实施办法), providing detailed standards and operational procedures for sealing juvenile criminal records.
II. Characteristics
1. Scope of juvenile criminal records
A judicial organ shall “seal all materials of the minor involved in the case to the maximum extent permitted by law”. This means that juvenile criminal records, including all case files and electronic information formed in the process of investigation, prosecution, trial, and execution of criminal punishment concerning juvenile criminal offenses or suspected criminal offenses, should be sealed for preservation. For example:
Materials in a juvenile criminal case shall be kept encrypted and shall not be disclosed prior to the conclusion of the case.
After the court renders a judgment for a case involving suspected criminal offenses by a minor, all authorities participating in the case shall initiatively seal relevant records of the minor that are in their possession.
Records of no criminal punishment, no investigation of criminal liability, no prosecution, or the adoption of compulsory criminal measures, as well as records of social investigation, aids, education, and inspection, psychological counseling, judicial assistance, and other work for juveniles suspected of committing crimes shall be sealed for preservation in accordance with the law.
2. Method for sealing juvenile criminal records
A judicial organ that has juvenile criminal records shall establish a specialized archival repository for juvenile delinquency and implement a strict safekeeping system.
In order to seal the juvenile criminal records in the electronic information system the authorities shall add a seal mark. No one may search, share, or reuse such data without the statutory inquiry procedure.
There have been cases where companies have obtained juvenile criminal records while conducting background checks on employees. As a result, juvenile criminal records, which are now sealed by the judicial organ, may not be provided or docked to external platforms.
3. Procedure for inquiring about juvenile criminal records
Public security organs, procuratorates, courts, and judicial administrative organs (the Ministry of Justice and its local counterparts) are responsible for accepting, reviewing, and handling the sealing and inquiry of criminal records within their respective jurisdictions.
Juvenile criminal records may be searched only under the following two circumstances:
- a juvenile whose criminal records have been sealed, or his/her legal representative, requests the issuance of a certificate of no criminal record for him/her; and
- a judicial authority inquires about criminal records for the purpose of case handling or the relevant entity inquires about criminal records in accordance with relevant provisions of the State.
Where an inquiry about sealed juvenile criminal records is permitted, the entity and the relevant personnel making the inquiry shall sign a confidentiality agreement.
Any entity or person who learns about the sealed juvenile criminal records due to their work shall keep them confidential and may not disclose the sealed criminal records. Otherwise, such an entity or person will be investigated for criminal responsibility if serious consequences are caused.
Photo by charlesdeluvio on Unsplash
Contributors: Guodong Du 杜国栋
