留学生作业代写：Juvenile justice system in Germany

下面为大家整理一篇优秀的assignment代写范文- Juvenile justice system in Germany，供大家参考学习，这篇论文讨论了德国少年司法制度。作为大陆法系的重要代表，德国早在1923年就出台了以教育思想为特征的适应青少年生理与心理特点的少年法院法，并且在此基础上各州司法行政部门建立了青少年法庭。经过多年不断的修改与发展，德国的未成年人司法制度已经相当完善。

As an important representative of the civil law system, Germany introduced the Juvenile Court law which adapted to the physiological and psychological characteristics of the youth in 1923, and on this basis, the judicial administrative departments of each State established juvenile courts. After many years of continuous revision and development, Germany's juvenile justice system has been quite perfect. This paper will make some comparisons between the criminal procuratorial system of minors in Germany and the relevant aspects of the criminal procuratorial system of minors in our country, hoping to provide some useful experience for the further development of juvenile criminal procuratorial system in our country.

Because Germany's criminal procedure system is very different from our country, and the Juvenile Criminal court procedure is different from the general criminal Procedure, it is necessary to introduce the ordinary criminal procedure in Germany, compare the differences of the German juvenile justice system, and then understand the essence of the design of juvenile justice system.

German judicial system is very complex, the court sequence follows two principles to establish ―― decentralization principle and special principle. The principle of decentralization is mainly for the distribution of power in federal and state courts. The German Basic Law conferred jurisdiction on the judges of the German Constitutional Court, the Federal Court and the state court, that is, the principle of trial monopoly. As the Supreme Court of the Federal Court, its main function is to act as the appellate Court of Appeal of the state court, and to ensure the uniform interpretation and development of German law. The special principle is that the German courts are divided into five specialized courts ―― ordinary courts, administrative courts, labour courts, social courts and financial and financial courts. The criminal case is accepted by the ordinary court.

Criminal proceedings in Germany are divided into three stages: pre-investigation, pre-trial and trial. The criminal procurator's duty in the criminal procedure is mainly to accept the prosecution of the crime; lead and direct the police to carry out investigation, according to the law, in the criminal case investigation, the police has the duty to obey the prosecutor, if disobey, is the dereliction of duties, but in practice the police are often independent investigation case, its function has been independent of the prosecutor. Can temporarily take coercive measures, but all the coercive measures taken against the suspect, by the prosecutor and by the judge, decide whether to prosecute or not, whether or not to prosecute or stop proceedings in criminal cases in which the case has been filed, the Prosecutor shall decide for himself; In addition, German prosecutors are responsible for the execution of criminal judgments. This is a special point of German prosecutorial power. Where the prosecutor brought a lawsuit, the court decided and entered into force in accordance with the law of the execution of the sentence to return to the original procuratorial organs, the Prosecutor is responsible for the execution of the judgment, the execution of the implementation of the implementation by the Prosecutor to command judicial personnel to complete.

From the above, we can know that the court is in the core position in the criminal procedure system of Germany, although the procuratorial organ has been involved in the handling of the case all the while, the institution of the procuratorial organ, the scope of the case, the litigation measures and the development of the process are restricted by the judge. Therefore, the discussion of juvenile criminal procuratorial system in Germany can only proceed from the whole of juvenile justice system. Because the juvenile procuratorial system in Germany has no special legal provisions, it can only be carried out in accordance with the Juvenile Court Act.

As early as 1923, Germany enacted the Juvenile Court Act, characterized by educational thought, and on that basis established a special juvenile court to form a juvenile justice system that distinguishes it from ordinary criminal cases. The current law on juvenile courts in Germany was the most recent amendment of December 11, 1974, which was issued on January 26, 1998. Germany's juvenile justice system is based on the juvenile Court law, supplemented by the general criminal law and the relevant provisions of the criminal Procedure Law.

According to the Juvenile Court Act, juvenile delinquency is tried by juvenile courts and juvenile courts are referred to as juvenile judges, trial courts and criminal courts by criminal judges. The juvenile court is composed of a juvenile judge and two junior assessors. In each of the proceedings, the male and female assessors must be appointed. A judgment other than the procedure of the presiding judge, without a juvenile auditor. The juvenile court consists of three judges, one of whom serves as the presiding judge and two juvenile assessors, and consists of the presiding judge and two assessors in the appeal proceedings against the juvenile judge's decision. The duties of juvenile judges are identical to those of the local primary courts, and they should also be responsible for the educational tasks of the Family and guardianship judges for juveniles, and if juvenile criminal cases in several local junior courts are borne by a juvenile judge, it may not be necessary to undertake this task. The presiding officer of the juvenile court, as recommended by the Juvenile Welfare Committee, is selected by a committee of the Court for a term of four years. The number of male and female assessors is equal. The Committee on Juvenile Welfare should recommend candidates with an equal number of men and women at least 1 time times more than they actually need. The juvenile judges participate in the trial affairs and make judgments with the presiding judge.

According to the Juvenile Court Act, a teenager is a person who is under 14 years of age under the age of 18, and a minor is a person who has attained 18 years of age under the age of 21. From this, it can be seen that although Germany and our country in the minimum age of criminal responsibility is consistent with the provisions of the ――14-year-old, but the definition of the age of minors there is a great difference. The juvenile justice system in our country is only for minors under 18 years of age who should bear criminal responsibility, while Germany applies the juvenile justice system to 14-18 years of age and 18-21 years of age youth, which is much wider than the scope of application of juvenile justice system in our country.

The legal consequences of juvenile delinquency are: educational punishment, Cochu disciplinary measures or juvenile punishments. However, it is not possible to Cochu the disqualification, voting and voting rights of public office. can also refer to the provisions of the ordinary criminal law, the juvenile delinquents to take corrective and security measures. Education punishment and disciplinary measures do not have the legal effect of penalty. Juvenile punishment is a special means of free punishment in the execution of prisons. All measures must be adopted from the perspective of youth-friendly education. And the maximum freedom penalty shall not exceed 10 years. There is no legal effect of punishment in educational and disciplinary measures.

From these provisions on the legal consequences of juvenile delinquency, it can be seen that the German juvenile justice system and the many so-called juvenile delinquency cases dealt with by the juvenile courts are treated only as illegal in our country because of the different understandings of criminal law, punishment and crime. Because of this, the legal result of the German juvenile delinquency is usually not the penalty, but is taken the education punishment or the disciplinary measure, and these measures in our country are usually by the public security organ to those who violate the law and order regulations of minor illegal juvenile handling measures, Will not enter the scope of juvenile criminal prosecution system.

For the protection of juveniles, the trials and judgements of juvenile courts shall not be made public. A judge may order a litigant to be barred from appearing in court if he has a situation that is prejudicial to the education of the defendant. If the court is not conducive to the education of the accused in the debate, the accused should be temporarily taken away from the court, and if the defendant's relatives, guardians and legal representatives may cause concern to the defendant, he should also order him to avoid it. The verdict of the juvenile court tells the defendant that it may adversely affect his education, and may not be informed.

In introducing the German general criminal justice system, it was pointed out that the enforcement of court judgements was the responsibility of the Prosecutor, but in the area of juvenile justice, in accordance with the provisions of the Juvenile Court Act, the Executive Director of juvenile criminal cases was a juvenile judge. The juvenile judge also fulfils the duties prescribed by the Criminal Procedure Law to be performed by the penalty Executive Committee. In addition, in order to achieve the educational objectives pursued in the juvenile penalty, juvenile judges may implement the juvenile sentence leniently and, where appropriate, further in a free manner.

In addition, judging from the complex court system in Germany, the four-level trial mechanism is used in ordinary criminal cases, while juvenile criminal cases are two and no appeal will be filed against the appeal trial.

The previous introduction of the German juvenile justice would give a false impression that the procuratorial organs seem to be very passive in dealing with juvenile delinquency cases. In fact, cases falling under the jurisdiction of the juvenile court require the participation of prosecutors with educational capacity and experience and the right to a considerable amount of discretion in the proceedings. For example, in accordance with the provisions of the Juvenile Court Act, the Prosecutor is exempt from prosecution without the consent of the judge, provided that there is a prerequisite under article 153th of the Code of Criminal Procedure; We can order education punishment for illegal juveniles, such as reconciliation with the victim, if the accused is confessed to his illegal act, and the Prosecutor considers that there is no prosecution necessary, it may be advisable to advise the judge to give a sermon or instruction, or to impose an obligation by a judge. Where the juvenile judge accepts the proposal, the Prosecutor is exempt from prosecution and, when given an obligation to do so, it is exempt from prosecution only when the juvenile accepts it. In other words, the procuratorial organ, in exercising its authority to examine and prosecute, from the perspective of the benefit of juvenile education and litigation economy, the juvenile justice process can be terminated and juveniles exempted from punishment; Germany's concept of penalty has never believed in the role of short-term free punishment in the Special Prevention of crime, and also provided another basis for prosecutors to use prosecutorial discretion in juvenile justice.

The Basic Law of the Juvenile criminal justice system in Germany ―― the Juvenile Court Act clearly stipulates the legal consequences of juvenile delinquency, including educational sanctions and disciplinary measures, neither of these treatments has the effect of penalties, and specifies the various educational measures that can be taken and the educational aid institutions and conditions that ensure that educational measures are effectively implemented. It has been proved that in judicial practice, educational measures are widely used by prosecutors and juvenile judges, even if the use of free sentences, juvenile judges can still be based on educational purposes or the recommendations of the Prosecutor to suspend or relax the implementation, while providing appropriate educational measures.

In accordance with German law, a juvenile judge may, as long as he is satisfied that the conduct of a convicted juvenile is impeccable and proves to have a decent conduct, declare a record of the removal of the former offender on the basis of his authority or on the application of the sentenced teenager, his guardian or legal representative. It is also possible to apply by the prosecutor or the sentenced person to apply for a minor in the application by a representative of the Juvenile Court help Agency to announce the elimination of the record. However, in order to prevent the abuse of this system, the use of the record of the elimination of records set a certain condition: in addition to the special circumstances, only after the execution of the sentence 2 years or after the punishment was dispensed. However, the Cochu 2 years under the juvenile sentence, due to the penalty or residual punishment after the expiration of the probation period, the judge should declare that record is considered to have been eliminated.

The slow section of juvenile delinquency, which is a system peculiar to the criminal justice of the German juvenile, refers to that although the investigation, but still can not grasp the juvenile delinquency to indicate the degree of dangerous tendencies, and sentencing his sentence is necessary, the judge first determined that the juvenile's guilt, the juvenile punishment to be slow division, and provide a certain test period. Juvenile in the test period performance is bad, the guilty verdict recorded in the behavior of the accused to show a dangerous tendency, there is a juvenile sentence is necessary, the judge can Cochu juvenile punishment, the sentencing range according to the declaration of guilt at the time of the determination of the risk of discretion. If the act is good, the guilty verdict is extinguished.

This stipulation is similar to the pretrial investigation system in our country's current juvenile criminal prosecution practice, but the two systems are different. Our country's pretrial inspection system belongs to the scope of discretion of procuratorial organ in exercising the right of public prosecution, while the latter belongs to the judicial discretion of the court. Therefore, the legal basis of the two is different, in the concrete operation also by the different judicial organs operate and control.

The Juvenile Court Act of Germany provides for the completion of the education of juveniles by the Juvenile Welfare Service and the Juvenile Help Association, which assists the representative in providing the juvenile court with an educational, social and helpful perspective for the reference of the juvenile court. To that end, the representative should support the Marshals study on the personality, development and living conditions of the accused's juveniles and propose measures to be taken. If the test of educational measures has not yet been employed, the representative shall exercise supervision over the circumstances of the accused teenager in the performance of his instructions and regulations. The Juvenile court assists representatives in all proceedings involving juveniles. The presence of a representative of a juvenile court who was instructed to give a child a child's help. In fact, the juvenile court helped the representative to participate almost as prosecutors in the process of dealing with juvenile criminal cases as a whole, thus making education available to juvenile delinquents and providing helpful advice on the final judgements of juvenile courts. This is still a concrete measure of the educational thought of juvenile criminal justice policy.

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