Discussion on the application of the criminal reconciliation in light damage in cases of

Hunan province Miluo City Public Security Bureau Wang Cloud

[Abstract]Criminal reconciliation is the criminal policy of combining punishment with leniency reflected, is currently the most used judicial policy of public security. The full text of the meaning of the criminal settlement, the value of criminal reconciliation,The foundation of intentional minor injury cases of criminal reconciliationIntentional minor injury cases, the criminal reconciliation with the construction of harmonious society in China the theme of the times, adapt to the stage of criminal reconciliation,The scope of application of criminal reconciliation, minor injury cases not applicable eight aspects of criminal reconciliation cases of minor injuries, to perfect the scope of intentional minor injury cases, the criminal reconciliation system suggestions are discussed.Criminal reconciliation, the proper use of minor cases, it can effectively protect the interests of the parties, can reduce the cost of justice, relieve stress, improve judicial efficiency, is the need of harmonious society under the lenient and severe criminal policy.

[keyword] criminal reconciliation Minor wound Compensation To return to the society

Since Comrade Hu Jintao proposed "constructs the socialism harmonious society", all the fields to work towards this goal. On the political front, the most we talk about is the criminal policy of combining punishment with leniency. The public security organ battle in the forefront, often with people to deal with, the criminal reconciliation has been widely used in the. But in recent years the common and multiple cases of intentional injury has become an important factor affecting social order, waste judicial resources. As basic police, how minor cases, make good use of the criminal reconciliation, resolve social conflicts, particularly important. Here, I on the investigation stage of intentional injury problems related to minor injury cases and makes a discussion.

A,The meaning of the criminal settlement

Criminal reconciliation, restorative justice, victim and offender mediation or the parties meeting, restorative justice negotiation. In the investigation stage, also known as the suspects and victims of reconciliation, generally refers to the crime, helped by the police, the suspects and victims to talk about the direct phase, negotiation, the victim of the understanding gained through the apology, compensation for losses, the request or agree to the judicial organ to the criminal suspect shall be lenient. Or exemption from criminal treatment and reached an agreement, it is a kind of criminal justice system to resolve the dispute or conflict, the purpose is to repair because of the crime suspect and the victim of the original harmonious relations, and make the criminal suspect and start with a clean slate.

Two, the value of criminal reconciliation

   Criminal reconciliation, the greatest extent reflects the specific requirements of restorative justice. The recovery of the fair value of justice belongs to the category of criminal and release, but has fair value, but also has the value of efficiency. Justice and efficiency constitute the basic value of criminal reconciliation system and balance.

(a) the fair value 

   The fair value of criminal reconciliation with its comprehensive protection to the victim, the offender and the public interest is the basic implication. In order to protect the interests of victims of criminal reconciliation as the core, taking into account the protection of criminal suspects and the public interest, promote the victim, the offender and the public interests to protect the value of the balance in the macro system of criminal justice, promote the overall fairness of criminal justice.

   1Criminal reconciliation, reflects the protection of the interests of victims. The criminal reconciliation has promoted the victim's status in litigation, which not only can participate in and influence to solve criminal conflict. The reconciliation process does not occur for the attribution of responsibility dispute, the perpetrators apologize to repentance, actively carry out the spirit of the interests of victims and the material benefits timely recovery, desalination of the victim revenge. The normal social relations between the parties to calm down as the subsidiary effect, thereby reducing the victim again by the same offender involvement may and worry.

2, the criminal reconciliation is beneficial to protect the legitimate interests of the perpetrators and re socialization. Prompt action is a basic need of the offender in the criminal justice process, fast running action, investigation, trial can greatly reduce the offender concerns about uncertain fate, so that it can start as soon as possible to return to the community efforts, investigation, prosecution stage and to adapt to the needs of. At the same time, the criminal reconciliation in the offender restoration effect is also very significant. By the impact of crime are discussed, the offender can deep experience the consequences of their actions, to sincerely apologize, consciousness. Moreover, because the reconciliation agreement and perform not start or stop of the perpetrators of criminal prosecution, the offender can avoid detection, prosecution and criminal procedures to cause further"Tag" effect, and can be more naturally re socialization.

   3Criminal reconciliation, reflects the protection of public interests. The criminal reconciliation with the penalty alternative means of nature, namely the applicable to a certain crime people no longer bear criminal responsibility or mitigate criminal responsibility. But this exemption has its strict conditions. Criminal reconciliation is defined for minor criminal cases and the minor crime, involving the public interest is small, such as strictly in accordance with the provisions of the criminal law on the convicted will bring greater pressure on the transformation of the prison,, is not conducive to potentially dangerous recidivism for prevention of great public interest, and the applicable criminal reconciliation can overcome this point. The criminal reconciliation protection tendency on public interests are more concentrated in the "future", refers to the larger public interest, while the smaller than the current criminal violations of the interests.

(two) the efficiency value

 Efficiency means to smaller waste the judicial resources, achieve the goal of ideal entity. Efficiency of criminal reconciliation in three aspects: the efficiency of litigation, criminal case judicial efficiency and judicial resources saving.

   1The efficiency of litigation, criminal reconciliation can directly achieve the case. The criminal reconciliation needs to be carried out in the basic premise of ascertaining the facts. In judicial practice, the existence of a large number of criminal cases of minor crime, investigation, prosecution, trial, the case of the difficulty is not because of nature of the case is light and decreased. Even if the judicial organ that the offender is the perpetrator, probably because of the lack of key evidence or offender refused to confession that the case cannot successful prosecution, trial. If the parties agreed to a settlement, so that the facts of the case is not very strict, investigation, prosecution authorities would not risk due to unclear facts, evidence and undertake to withdraw the case, the supplementary investigation or acquittal. Application of the criminal reconciliation judicial authorities can avoid these problems make quick processing legitimate.

   2The criminal reconciliation can indirectly, to achieve the overall efficiency of criminal justice. The overall efficiency of criminal justice has two meanings: one is the accurate conviction and sentencing of the trial, efficiency is the crime; two is to reduce the incidence of crime through inhibition of litigation procedure, namely the crime prevention efficiency. There is no doubt, case disposition efficiency can be related to other cases of disposition efficiency. Application of the criminal reconciliation fast, legitimate, effectively deal with minor criminal cases, so that the judicial authorities can effectively concentrate on human, financial, material and other resources, focus on the disposal of cause greater impact of the case seriously, society for social order. The criminal reconciliation plays a simplified procedure triage role, has a positive effect on improving the efficiency of litigation. The criminal reconciliation of the offender is a transparent, impartial dispute settlement mechanism. Through face-to-face emotional interaction with the victim, the offender can realize the transposition thinking in a certain extent, on the social, the benign guilt. The criminal reconciliation and therefore improve the efficiency of relapse prevention. Oxford County in 1993 before the store stolen case more, local police bureau in 1994 in such cases shall be handled by the criminal reconciliation, when retail store theft rate is 4%, neighborhood retail store theft rate is as high as 35%.

   3Criminal reconciliation, in line with the principle of litigation economy. The prominent role and the criminal reconciliation in the case of litigation efficiency and overall efficiency of criminal justice on the contact is its low cost in the judicial resources consumption. The criminal reconciliation in shorter time, victim and suspect does not require special preparations matter or energy in particular, participated in the reconciliation mediator will usually reconciliation process was simple and easy operation, which can generate results in line with the interests of both sides of reconciliation, and does not harm the public interest in a short time. As for the settlement results of examination and confirmation, but also avoid the case in the investigation, prosecution, trial, execution further judicial resources expenditure, greatly saving the judicial resources.

Three,The foundation of intentional minor injury cases of criminal reconciliation

The foundation of intentional minor injury cases of criminal reconciliation in our state owned cultural and theoretical basis.

(a) culture

The pursuit of harmony has been China cultural tradition. Since ancient times, "harmony" concept will win support among the people. Since Confucius "harmony" to Mo-tse's "universal love", "and" is always the primary condition for a social prosperity, including the whole social harmony, family harmony, the harmony of person and person, also pack of litigation between harmonious. Qian Muceng pointed out that "seeking Chinese is different, its culture characteristic is - and compliance".[i][i][i][] especially Confucianism requires officials do not easily disputes trial and promulgated the decision binding on the parties, and shall conduct mediation of disputes, in order to seek both parties are willing to accept voluntary solution. This is Chinese said "advised v." and "appeal", the social structure of natural agricultural economy and national traditional Chinese integrated, make this kind of "harmony", "no litigation" ideas win support among the people. While the modern concept of it and criminal reconciliation agreement. This is an important condition for operation of the criminal reconciliation system.

(Two.The theoretical basis is summed up in the following three points:

1, to achieve the purpose of punishment

The direct purpose of punishment, crime prevention, including two aspects of general prevention and special prevention, that is to say is the combination of general and special prevention. Think normally, special prevention is the prevention of the offender re crime, in order to make the offender does not commit a crime by penalty crime, education, so that the sincere repentance, shun evil and learn to do good, not to commit crimes. General prevention, prevention of society is possible criminal, i.e. by the applicable penalty, prevent the social unstable molecules on the path of crime, including three aspects: warning deterrence may carry out criminal of the instability of the potential offenders; comfort victims and their relatives, to prevent private revenge; education and encourage people to, stable social order. One of the theoretical foundations of minor injuries reconciliation, is the special prevention of penalty and the general prevention purpose has been realized, the penalty continued existence will become surplus, has no practical significance and the possible negative effects to the prosecution, shall be investigated for criminal responsibility is of no value.

2, the penalty function

The penalty function, is refers to the country develop, discretion and the execution of the penalty on people may have a positive effect. This is embodied in three aspects: one is to punish and reform of criminals; two is to society, education and encourage the deterrent function; the three is the comfort function. One of the theoretical foundations of minor injuries reconciliation, lies in the penalty function has been achieved. Against the people, have sincere repentance, personal danger is reduced or eliminated, to return to the society and the realization of the normal life; for the society, after a period of time, due to violations of social disorder and social psychological imbalance has returned to normal, the victims and their families, after the emergence of various facts or reasons, or after a period of time, the psychological hatred against the people no longer exist, so the possibility of private revenge is reduced even eliminated.

3, the choice of the criminal policy

At present, the strict and loose combination of the criminal policy of polarization, has become a rational choice of criminal policy in China, the 2008 Hunan Provincial People's Procuratorate promulgated the "Hunan Provincial People's Procuratorate on the procuratorial organ the applicable criminal reconciliation criminal record provisions", clearly pointed out: first, due to civil disputes, civil disputes, negligence and over fourteen years of age under eighteen years old minors behavior caused minor criminal cases, public security organs, the suspect can truthfully confession of all the facts of the crime to the public security organ, actively cooperate with the fixed collecting relevant evidence, and plead guilty, apology, a positive return or compensation for the loss of performance, get the victim understanding, can think is the plot remarkable slight harm is not great, not as a crime. Two, the criminal suspect crime legal punishment in less than three years imprisonment, or a lighter, reduce, exempt from punishment may be sentenced to three years imprisonment for less than the second paragraph, in accordance with the "Criminal Procedure Law" of the people's Republic of China 140th, decide not to prosecute. In practice, the public security organ may in resolving conflicts, promoting the harmonious principle, the parties when the mediation. Under the premise of voluntary,, written agreement reached through mediation, no criminal responsibility.

Four, The intentional minor injury cases of criminal reconciliation with the theme of building a harmonious society in China

1, reconciliation through the criminal the victim directly, timely compensation for injury suffered economic loss and mental damage. In the case of intentional minor injury, for the treatment of injury victims often spend a sum of medical expenses, for some poor economic conditions of the victim, get timely medical expenses, get timely treatment than criminal responsibility shall be investigated for the perpetrators of the more urgent needs. In accordance with the normal criminal procedure, the victim only can file an incidental civil action for economic compensation, which is time-consuming and difficult to wait until the actual payment security, solve by way of criminal reconciliation, the victim can get economic compensation in a timely manner, to alleviate the economic pressure. Such as: for October 8, 2010, City Public Security Bureau Su Yi intentional injury case. The suspect Su Yi in the new town development area of the city, driving drag soil and the victim Cao Weikai car hanging to quarrel, and beating each other. The suspect Su Yi took a stick from the car, will Cao Wei arm into fracture, identified as minor injuries after. After the incident, we found that the Cao Wei family was very difficult, since the death of his father, the home all by her mother worked to save some money for a living, learning of motor vehicle driver's license is the village people put all sorts of things together to give him the money to learn, in the face of sudden disaster home, be at a loss what to do. Cao Wei lies to the villagers gathered to plan the suspects home to denounce a view, trouble. In order to prevent the deterioration of the incident, resolve contradictions, the local police station decided to leniency policy as a guide, criminal reconciliation. In the coordination of the police, the suspect and the family member to what happened to regret it, actively cooperate with the public security organs, the families of the door apology, willing to bear the cost of health care, and economic compensation to the victim. Thus forgiven the victims and their families. So the police for criminal reconciliation on the case, and to withdraw the case. So the victim got timely treatment, the suspect should be education, but also to resolve social contradictions. In addition, in the process of reconciliation, victim offender when facing to admit a mistake, make the mental damage caused by damage behavior be offset to some extent, the criminal reconciliation system so that the victim's right to wait until more effective and more direct protection more timely.

2, repair caused by damage behavior between perpetrators and victims of the rift, and promoting social harmony. In a large number of intentional minor injury cases, the perpetrators and victims know each other, a crime happened just because of daily chores, neighborhood disputes, its social harmfulness. After the crime, the relationship between perpetrators and victims did not completely broken, both sides have sought to settle the dispute of desire, the criminal reconciliation is the best method to eliminate the contradiction between the two sides, the perpetrators of the sincere repentance, compensate for the losses, the victim's forgiveness, so that both sides of the conflict is completely resolved, so as to repair cracks, restore harmony the purpose of. Such as: a bureau for the Ren and intentional injury case, Bai Xiang in April 10, 2010 the city of Zheng Lanzhong in their field release, the village suspect Ren and blame Zheng Lan, the water into his house in the paddy field, two people quarrel happened, the criminal suspect Ren and hoes will be Zheng Lanzhong wounded in the head. After the forensic identification for minor injuries. After our investigation, Zheng and Ren is the village and neighborhood, previously as foundation disputes the two has a bad relationship, in fact, field water was not what. Because the relationship is not good to each other, resulting in serious consequences. After the incident, the police found the family situation of the two are not good because of injuries to the head, the urgent need to the hospital treatment, need twenty thousand yuan of money, the criminal suspect families because of that two relationship is not good before, contact feel shy and the families of the victims, we the police know this information, contact their families, Daniel, move. First, to appease the families of the victims, and urged both sides to family members to raise money to rescue the injured positive, there are difficulties station can advance, relevant policies and the propaganda of criminal reconciliation, both families in dealing with the case of active. The ultimate victim got timely treatment, and in the repeated process of reconciliation, both vindicated, and caused the previous disputes contradictions animosity. The handling of the case, also let the police deeply conscious of the criminal reconciliation by when, not only solve the neighbourhood contradictions and get beat all social benefits, but also enhance the police image in the minds of the people.

3, help offenders return to society, return to normal life, in the face of increasingly high rate of re crime, people put forward many questions on the current penalty system. The custodial penalty is not obvious in the education reform criminals, to help offenders reintegrate into society of the role, but in the criminal to exchange experience in the areas of negative crime is more obvious. We approached a lot because of economic crime detained suspects, they are mostly a certain cultural qualities of the people, in the process and they talked, talked about the young people especially minors detained in custody cases, minors degree the hatred of society than other age paragraph the person to strong, they blame is more guilty than social recognition and understanding they were in the wrong things. So they give up on themselves, they learned how to deal with the government's education in prison, learned how to deal with the public security organs of the investigation means, even in his prison as after mix in the society's qualifications. So for the intentional minor injury cases the offender, especially minor students, which, according to the traditional procedure, the implementation of imprisonment punishment to them, will make them and society into, result in many negative effects; in reality, there are many of these cases. Such as, in 2009 October for a board of the vocational students to play and Long Shuji dispute, with stone injured students intentional injury case. The city in 2010 April second vocational schools for a board of Li Wei school canteen meals due to queuing dispute with the students, students with a fork of intentional injury case, contusion. In these cases, the suspect is full sixteen one full year of life, have reached the age of criminal responsibility should be investigated, they are full of sap, young love, seek to prevail over others, due to weak legal awareness, and ultimately violated the criminal law. If they were dealt a blow with the criminal detention, you will miss life. The criminal reconciliation, not to make them aware of their own behavior and assume the liability of compensation, not to pursue the criminal responsibility, so that its earlier return to society, to restore normal life, become a useful person to the society.

Five, the criminal reconciliation of adaptation stage

Firstly, in the stage of investigation, if the victim refused to be investigated for criminal responsibility of criminal reconciliation procedures, the public security organ may, on the basis of the facts established, civil compensation settlement agreement or compliance to the mediation agreement of both parties in the investigation stage, and the withdrawal of a case. If the victim back, according to criminal law article eighty-seventh, asked to register, otherwise requires procuratorial organs shall register.

Sue link in the review, adhere to the settlement does not sue the system mainly, supplemented by the principle of reconciliation and prosecution, the willingness to settle and comply with the conditions for reconciliation, reconciliation in the procuratorial supervision or under the auspices of non prosecution, meet the conditions, should be made of non prosecution. Claims based on now relatively non prosecution on the deferred prosecution. Specific approach is to temporarily not to prosecute, as a means to retain the prosecution, in the prescribed period, the fulfillment as criminal and victim reconciliation and reconciliation agreement, decide whether to prosecute. If the criminal suspect is not a realistic ability to perform, but show a positive attitude and feasible compensation plan, and the victim's consent, can also make a decision not to prosecute in the compensation before. As for the settlement with the prosecution condition, proposed the lighter, mitigated punishment sentencing recommendations to the court.

At the trial, that the criminal reconciliation is possible, but little practical significance. One is because an important value of criminal reconciliation is efficiency, the case into the trial links and meaningless. Two is a purpose of the criminal reconciliation is to avoid the victim in the court dignity and spirit were two damage, and in the trial stage reconciliation, still could not avoid hearing the victim may suffer.

Six, the scope of application of criminal reconciliation cases of minor injuries

For due to civil disputes assault or intentionally hurt others, causing minor cases, if the circumstances are obviously minor and the harm is not great, with one of the following circumstances, with the consent of both parties, the public security organ may handle the case according to law reconciliation:

(a) between the relatives and friends, neighbors or colleagues because of trivial disputes, both sides are at fault;

(two), the minor students assault or deliberately hurt others body;

(three) Department of infringement behavior caused by the fault behavior of personnel before the victim;

(four) other applicable settlement to resolve contradictions.

This kind of case, subjective malignant is suspect, is a crime of passion, on the social impact is not great. Just a few case mentioned, in many ways reflects these points.

Seven, do not apply to criminal reconciliation cases of minor injuries range

I think, the following case does not adapt to the criminal reconciliation

(a) plot wounding, defiance and affray, crime of affray, underworld and evil, or robbery, robbery and other serious impact on social order and minor injury cases;

(two) damage the interests of the state or serious harm the social and public interests and the victim of many cases of minor injury cases;

(three) the act had a criminal record, or in prison, probation, parole, reeducation through labor and criminal coercive measures taken during the intentional crime cases of minor injuries;

(four) also guilty of crime cases of minor injuries;

(five) other unsuitable and minor injury cases.

The above categories of criminal suspects, subjective vicious big, a very bad social influence, the masses of the people cherish an undying, not criminal reconciliation. As of 2008, a southern Shou village to the Soviet Union examination and village is a friend, the communication process, to check often give the wife send information. After the discovery, very angry, made to check a slap on the face. Convinced not to check, to 20 people, carrying machetes, find the theory in the village store, and to bring people to the Soviet Assault, causing the injuries. After the incident, to the detection and its family request the public security organ of criminal reconciliation in the case. The local public security organs after consideration, that the case has the character of defiance and affray, affray, not criminal reconciliation. According to the law to criminal detention procuratorial organs prosecution, arrest in accordance with the law, the prosecution, the final court sentenced to one year in prison for examination, and compensation for all medical expenses. The handling of the case, by the local people clap hands for joy, received a good legal effect and social effect.

Eight, to perfect the system of criminal reconciliation of intentional minor injury cases advice

Because of the lack of clear legal provisions, in case of intentional minor injury of criminal reconciliation in practice, there exist a variety of problems, such as the amount of compensation the lack of standards, individual victim price oneself out of the market too wide range; and, if the circumstances are serious, the individual subjective malignancy of the criminal suspect is applicable and etc.. Starting from the perspective of improving the system, first must be clear about the criminal reconciliation system in intentional injury legitimacy, legitimacy problems in the application of minor cases, the judicial practice of intentional minor injury cases of criminal reconciliation in the experimental stage, recommended by judicial interpretation of criminal reconciliation system approach must be in the application of minor injuries in the case of intentional injury given its proper,, legal status; applicable scope, followed by suggestions for minor cases applicable terms of criminal reconciliation system, compensation is suitable the procedure standard, etc to be specific, avoid the current practice of the randomness is too large, lack of operational guidance defects.

The criminal reconciliation in minor cases is a part of the criminal policy of combining punishment with leniency. We have read, understand the criminal policy of combining punishment with leniency, criminal reconciliation can run injury cases. As the reconciliation efforts, possible abuse, lead to criminal reconciliation cases stale, there may be some suspect crime after no remorse, buying punishment thought, become rich tool. But we should not give up eating for fear of choking, should go through the research will continuously improve, give full play to its resolve social contradictions, the judicial function in constructing a harmonious society.

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