Adjustment of the structure of criminal law, reform the system of reeducation through labor

Interview: Liu Renwen: Deputy Director of law Chinese Academy of Social Sciences researcher, Department of criminal law

"Chinese reform" reporter / Yang Ziyun

For the outlet of reeducation through labor, approximately have three kinds: one is to retain and strengthen the claim that the system not only, and made important contribution to the social stability, but also put a lot of shelter staff support oneself into law-abiding citizens, so this is China characteristic system can only be strengthened; two is to abolish reeducation through labor, that nature vague, general housing conditions, operation process is the lack of supervision, optional sex is big, easy to make mistakes, infringement of citizens' personal freedom is the rule of law is not perfect, the product of the times, should be abolished; the three is to reform, thought our country is in the social transition period, social security, the people's life order still need further stability in this situation, all at once, to implement the 50 years reeducation through labor system completely abolished, unrealistic. Law Chinese Academy of Social Sciences researcher Liu Renwen put themselves into the category of the reformers in this category. The system of reeducation through labor how to change? Professor Liu Renwen from the criminal law of our country's structural adjustment, on this issue made a penetrating analysis.

Abolish the reeducation through labor, to adjust the structure of criminal law

Reporter: you have been to their ownership reform the system of reeducation through labor is sent instead of abolishing the camp? How do you establish own position.

Liu Renwen: we have the public security management punishment law, criminal law, why even among a reeducation through labor? The main reason is the official, the reeducation through labor is the main governance "mistake made, minor ones, angry public security, hard court" piece. I also think that labor can not simply to abolish it, because of a defect structure of our criminal law, it is our criminal law provisions are larger, the plot is serious to constitute a crime, the criminal law of our country criminal concept both qualitative and quantitative regulations, provisions (western criminal law are mostly only qualitative, not quantitative rules). For example, constitute the crime of theft in China the lowest 500 yuan to theft, but in western countries in the criminal law of theft and theft of 1 yuan 500 yuan of nature is the same, are theft; constitute assault in China must reach a certain harm to the consequences, the assault is generally does not constitute a crime, but in western countries in the criminal law, you hit his fist may also constitute a crime. Of course, is not to say that in these countries the theft of 1 yuan or fight a boxing will be sentenced, it should combine the dangerousness and subjective malignant and social and public interests and other factors to the comprehensive judgment. Quantitative provisions in the criminal law of our country caused by the judicial practice of only results on, ignore the behavior of human personality, the public security management punishment law is also a results oriented, so that both focus on up from punish the objective behavior and the harmful consequences of cohesion, and the subjective factors of human behavior is not considered, so left a structural defect in the prevention and control of crime, the structural defects of reeducation through labor, such a focus to the perpetrator's subjective vices and pay attention to the personality correction to compensate for the. Therefore, I tend to agree with the current cannot simply remove the reeducation through labor, but should make reform be injured in the sinews or bones is a fundamental, the.

Reporter: how to understand the "be injured in the sinews or bones", how to change?

Liu Renwen: this reform, how to change? That is, whatever you did to make the system of reeducation through labor, administrative punishment or correction of illegal acts, or, the key question is: do you want to leave the decision of deprivation of personal liberty to who? No country in the world of deprivation of personal liberty is not up to the court to award. I always think, a big regret in 1997 criminal law amendment is, does not solve the problem of reeducation through labor.

I recently wrote an article "on the adjustment of the structure of China's criminal law thinking", the problem is, at present, our country civil law scholars are devoted to the formulation of a uniform civil code, criminal law scholars seem to be proud that our criminal code in 1979 to develop here, 1997 introduced the new criminal code revised. In fact, our criminal code is just to solve the western criminal law in part because of felony, our criminal law provisions to larger or more serious plot can constitute the crime related. How to do for this scenario? We have two sets of system now, reeducation through labor and public security punishment. The light is in the punishment of public security, public security punishment actually is problematic, you order the detention, public security organs by what be deprived of personal freedom more than ten days, without any of the court's ruling, which in the western society, a day or even an hour is not enough. We order the detention of up to fifteen days, there are more than two kinds of acts violating the administration of public security may be up to twenty days. Of course, this and the detention of the three or even four years than the problem seems to be little. But the problem is to unify thinking, what is the standard? This standard is the international conventions on human rights requirements. We have signed the "International Covenant on Civil and political rights" in 1998, we are prepared to ratify the Convention, therefore need to make corresponding changes to the domestic law of inconsistency. According to this Convention, any person deprived of personal freedom, all through the proper procedure to avoid leaning to either side by a competent court.

The western criminal law for the classification and the punishment of crime

Reporter: you just said our criminal code only to solve a part of western criminal law, here specifically how to understand? Can you tell us about the western criminal law on the crime classification and punishment?

Liu Renwen: American Model Penal Code the crime into four categories: (felony) a felony, misdemeanor (misdemeanor), micro crime (petty misdemeanor) and police (violation), of which the first three class called "crime" (crime), the consequences may be involved the penalty of deprivation of personal liberty (micro. A fine of not more than 1 years imprisonment), fourth types of "police" can only be fined or other civil sanctions, but "not guilty by the limited capacity or legally detrimental".

French Criminal Law since 1791, has been in accordance with the seriousness of the crime, the crime into felony, misdemeanor and police. The new criminal law promulgated in 1992, 1994 began to implement the "three still maintain method". According to the provisions of the law twelfth, the police can only be sentenced to a fine, revocation of the driving license, recover the hunting license, or deprivation or restriction of personal freedom penalty.

Germany as early as in the imperial penal code in 1871 "(" the origin of the existing criminal code) three points on the use of a felony, misdemeanor and police. The 2002 revision of the German penal code will crime into two categories including felony and misdemeanor, felony refers to "illegal" minimum sentence of 1 years or above 1 years free punishment, misdemeanor refers to "illegal maximum sentence of 1 years following the free punishment or penalty". in addition, general German criminal law in third legal consequences chapter "behavior", "correction and security punishment" and "punishment" in parallel, thus, the correction and security measures include: contained in the mental hospital; contained in the addiction mechanism; security supervision; supervision; revocation of the driving license; occupation. It is worth pointing out, the German criminal law although the police out put provisions in the "violations of law", but a "violation of law" is the maximum punishment can only be fined, but not deprived of personal freedom; two is fine, as long as the person being punished have objections, the police have to stop execution the case, will be handed over to the court, not like our public security penalty, whether you agree or not, the penalty again, as you have to go to court and Sue, that is the last thing.

Visible, probably a felony, misdemeanor range and police the world today is the scope of criminal law, and the security measures is included in the penal code is also quite a number of countries. By contrast, China's criminal code about include felony part of western criminal law, without police, misdemeanor and security measures three pieces. In our country, crime because in most of the qualitative and quantitative (such as large amount, if the circumstances are serious, therefore the criminal law etc.) is the public security management punishment and reeducation through labor two blocks; in addition, security measures are not in our criminal law is the system embodied.

Construction of basic platform of international dialogue

Reporter: it seems to want to reform or abolishing the system of reeducation through labor must adjust the structure of criminal law?

Liu Renwen: to construct a scientific structure of criminal law, and international dialogue is a basic platform, otherwise there will be a lot of absurd. For example, we are now some scholars often speak, Chinese is the world's lowest crime rates. Why is the minimum? Because the criminal code you only felony, not including the detention and punishment. As we all know, only that the security punishment, illegal cases of our public security organ cases every year, than criminal cases than many, if the three pieces together, you can't tell me you are the world's lowest crime rates. In fact, the anti-theft door we each and every family have a look, that sense of security China people is lower than in many Western countries.

I want to emphasize that the problem is, the international dialogue needs to have a basic platform. This platform where? Is that any deprivation of Liberty Penalty, no matter what your name is, it is the essence of a severe and criminal law is the legal consequences. For such severe punishment, international practice is to pass the neutral judge court, and make sure that the legitimacy of the least. Correspondingly, of course, the parties concerned should be given the right to appeal, the right to defense counsel of his own legitimate rights and a series of other criminal proceedings. If you do not understand this point, will appear jiaotongyijiao instant gratification, phenomenon, today someone attacks you reeducation through labor system, the system of reeducation through labor away tomorrow, international human rights organizations will attack our security detention.

Reporter: some people may worry about, now that we re education and public security penalty is in fact to save a group of people, because not to paste on the crime label. If after all into criminal law, Is it right? Gave them the crime label. In Chinese this society, people have to face, do not want to be attached to the last crime labels, how to solve this problem?

Liu Renwen: we have a lot of people are not willing to sit down and carefully read the books, but used to repeat word for word what others say. Actually this kind of worry is completely unnecessary, a very good solution to foreign countries, such as the provisions of the law directly: for police, some minor and some security measures are not as "criminals" said, do not enter the criminal record; or the law according to the gradation of crimes is not set up a criminal record elimination period, after the time limit would destroy his criminal record, only very serious crime to retain their lifelong criminal record. So, for those who do not enter the criminal record or the elimination of previous conviction, the admissions, employment rights will not be affected.

Reporter: in addition there may be fear, the judicial organs have been overwhelmed, you then security punishment, reeducation through labor and security measures into the criminal law, the judicial authority much more burden?

Liu Renwen: so, I think: first, security punishment into criminal law, mostly attributable police, still by the police, but only as a warning, fines and other penalties for non deprivation of personal liberty measures. The fine is the premise of the consent of one of the parties agree, violation of the law of order as the German "". We are now a lot of public security penalty, tens of thousands of, you take not must pay, pay to go to, it is late, the money is also very difficult to bring it back. Therefore, it must establish such a system, is to seek the consent of the party concerned, he thinks it is wrong, do not want to go to court litigation is tired, or feel lose face, hand over the money got. For example, traffic tickets, can now fine, but the premise must be recognized. As long as I don't believe you, the police can not punish me, was resolved by the court. Should see, in most cases of the facts are clear, the evidence is simple, not easy to generate large divergence, and the real against the police, to be submitted to the court ruling only a small part of the. Also should see, it will make the criminal law mechanism is more smooth, is conducive to the overall improvement of criminal law benefit.

Second, by improving the existing criminal procedure of prosecution and trial system to a lot of the non crime and light punishment. For example, Germany now has more than 50% of criminal cases through informal "transfer" approach to deal with, only a small half way through the real formal to processing (which is as high as 80% is fine processing). Also, in American, over 90% criminal cases take the plea bargaining system implementation, the summary procedure is applied in processing cases accounted for 95% of all criminal cases above. In Japan and other countries, and the suspension of prosecution system. and there is no similar plea bargaining and deferred prosecution of such system, the penalty is mainly to heavy color strong imprisonment, community correction, penalty and other light probation penalty is not occupy the position of criminal procedure law, revised in 1996 has stipulated the summary procedure, but the scope of also partial.