Confucian legacy

A Beijing Normal University criminal law professor who has studied elderly criminology for nearly 20 years liked the sentiment behind the draft amendment.

"On the one hand," said Zhao Bingzhi, "the physical and mental condition of the elderly is deteriorating. After all the extreme crimes are rare compared to others and they [the elderly] can be regarded as a vulnerable group, meaning their responsibility towards criminal law should be lighter.

"On the other, although they can avoid the death penalty, they still get several or more years in prison, and after they finish jail, they're unlikely to do any more harm to society."

Traditional Chinese attitudes probably play a role in legal thinking, Zhao believed.

"Lighter punishments for the elderly can be traced back as far as 3,000 years ago to the Western Zhou Dynasty [1046-771 BC] and became a detailed law on paper in the Tang Dynasty [618–907]."

The law at that time stated punishment for people over 70 should be lighter than others, and only the emperor has the final say on the death penalty for people over 80. People over 90 couldn't be sentenced to death at all.

The precedent held through the ensuing Song (960–1279), Yuan (1271–1368), Ming (1368–1644) and Qing (1644–1911) dynasties.

"I think this idea should also be followed in our current laws," Zhao said.

China had more than 167 million people over 60 by the end of 2009 or 22 percent of all the world's elderly, according to statistics from the China National Committee on Aging. Half live alone.

That number will reach 400 million by the end of 2040, said committee deputy director Wu Yushao.

A 21st century "silver tide" created by national family planning policy has far-reaching implications that are beginning to affect policy.

A bizarre new draft amendment to the 1996 Law of Protection of Rights and Interests of the Aged discussed at the December 20-25 11th National People's Congress Standing Committee meeting reveals the seriousness of that concern. The amendment orders children to visit their parents.

"The new amendment is more like a gesture by the government," said Zhou Bingrong a lawyer at Beijing-based Junhe Law Firm, "showing their great concern for the aged.

"Even if it ever becomes real, I don't believe a large number of parents would actually sue their children for this."

Even before the amendment, China had experienced its first case of parents suing children for not coming home to visit: a kind of Confucian crime.

An 80-year-old retired teacher from Jiangsu Province sued his son for seldom visiting. In a stunning boost for fans of filial piety, the court ruled the son should visit once a week no shorter than two hours.

"We should let children care about their parents from the depths of their heart," said Gao Fuping, a law professor from East China University of Political Science and Law in Beijing.

"Law enforcement may have some effect, but it may also trigger negative attitudes in society.

"And it needs parents to positively express their feelings to their children and then to work out acceptable methods.

"Complaining or seeking legal redress isn't the right way to go."

The government should do more with the social welfare system to enable a healthier and happier old age, Gao and Zhou agreed.

The controversial amendment mentions a nationwide standard subsidy for people over 80 as well as improving the health care system.

Many elderly can't enjoy these subsidies and services because different provinces have different policies and enforcement. The amendment aims to set a national standard for the first time.