2010 criminal law academic discussion

                        The first group: theoretical research on the harm to society

    Host.Mo Hongxian(director of criminal law research center, Wuhan University School of law Chinese law criminal law research vice president)

    The Mo Hongxian:Today we this group on "social harmfulness theory" the theme of discussion, please experts, representatives will speak.

    Feng Yadong (Professor of Southwestern University of Finance and Economics):Belongs to the social evaluation of social harmfulness, value evaluation is the evaluation is the premise of the fact. Such as whether euthanasia is harmful to the society? First look at the facts, euthanasia is a choice their own or others for help behavior; in the legal scope, social harmfulness is only the evaluation of human behavior, human behavior cannot be extended to outside; the value sense, philosophy is divided into three layers: one is the negative evaluation, a positive, there is a neutral evaluation, criminal law did not follow this level; damaged the social harmfulness and the interests of damage and object. There is a misunderstanding of criminal law, the legal damage equal to the object is damaged, the interests of damage is a kind of pure objective fact, but in China context, social harmfulness is a comprehensive judgement. Unlike Germany, Germany refers only to a damaged behavior objectively, does not contain the subjective evil, it can not be equal. It is only one aspect of social harmfulness, is the relationship between whole and part; the social harmfulness concept has very important significance in China's current criminal law under the. Our criminal law is mainly aims at the present Criminal Law Hermeneutics, explain, build the platform for the practice of. Unlike the German criminal law, the crime can be divided into two categories, one is the objective of crime, emphasizing behavior; another kind is the children and mental patients, and the unity of subjective and objective structure of crime, the German penal code of the objective and subjective aspects separately. And Chinese crimes is the unity of subjective and objective. So in the China penalty system of our criminal law should be quantitative, theory of crime must construct it, Chinese criminal law must use social harmfulness concept, the basic concept is very important.

    Ou Jinxiong (Professor of Guangxi Administrative Cadre Institute of politics and law):Position the social harmfulness of the crime is very confused? Whether the social harmfulness of crime as an independent element? Some people think that the social harm as the two layer of the constitutive elements of the crime. A crime, both the fact and value, how to decompose the Constitution? Social harmfulness in the crime should have the status of the. Evaluation of the crime complete, necessary and sufficient conditions in logic; the criminal law scholars have put forward proper behavior in the four elements, object elements missing. Justifiable defence with the four elements that make sense, if understood from the objective elements, harmful acts in justifiable defense value evaluation, no harm to society, of course, is not a crime. Objectively speaking, the justifiable defense is beneficial to society behavior. The four elements that can explain the three class, said that its should compliance should be of crime constitution, resistance is not true reason, is not a crime. The four elements system lacks, I think is reasonable.

    Zhao Weijia (Professor of Shanghai University of Finance and Economics):Social harmfulness should be divided into two aspects, one is a legislative, judicial. From the perspective of the people should be put in the administration of justice. The concept of social harmfulness is great, everyone has his own standard, so it is necessary to convert it into criminal illegality. The west is very simple, is the criminal illegality. Why the form is very important? At the judicial level, the first is the criminal illegality. To guide the society do not put in the criminal law, I agree with the formal concept. Article thirteenth of the criminal law, if the circumstances are obviously minor, is a crime of social harm evaluation. Social harmfulness to the judicial level into many specific concept. I to the social harmfulness is the essence of consent, but must be in the legislative level.

    Peng Wenhua (associate professor at East China University of politics and law):The social harmfulness is the legislation or judicial problems? At the legislative level, the set down, is the task. In judicial practice, try to realize the provisions of criminal punishment for the crime problem is worth, and the legislative and judicial goal is the same. Social harmfulness is the legislation and judicial practice, the central link. The legislation, justice can only try to close, and no country's criminal law the behavior that is harmful to the society are prescribed to criminal law; how to make the two near? Whether the social harmfulness can leave the facts? Social harmfulness can not be divorced from the facts. In the content is take the fact as the premise, the social harmfulness is built on an understanding of the value evaluation mechanism on the fact; the relationship between the social harmfulness and the criminal illegality. Social harmfulness to establish the fact and value, criminal illegality is how to establish a model, in German and Japanese criminal law, three elements, should actually is confirmed, a fact so, its scope is very broad, because there is no value judgment. Illegality and liability is a kind of value rule, law is a kind of objective oriented contains subjective value rule, liability is a kind of exclusion of subjective behavior and value. German and Japanese criminal is a three-dimensional structure, illegality and responsibility are sterically excluded. Our evaluation of the proper behavior. The object of the crime can act as evaluation of proper behavior? Proper behavior does not accord with the object of crime. Why excessive defense is infringing object? It doesn't make sense in logic and reason? Whether does the value evaluation? Only the part of the value of considering the proper behavior, some values are not taken into account. Proper behavior whether can such think? Reflected in the criminal law, how to form a common value confirmed, whether can the value of constitution of a crime to make up?

    Ouyang Benqi (Associate Professor of Southeast University):The social harmfulness of legislative and judicial problems. From the legislative point of view, any kind of crime is very harmful to the society. From the judicial perspective, but also avoid the harmfulness of social justice considerations, is to investigate whether there is harm to the society by legislation; constitution of fact and value the social harmfulness of the problem. The conviction, tend to value judgment, the fact judgment part in reducing. All crime is harmful to the society, a conviction in search of social harmfulness, seeking social harmfulness is the four aspects of looking for the constitution of a crime. How will the situation and policy changes into the value judgement? The legislation defined, justice will act as the circle? How China will situation policy into crime constitution theory? The guiding factor value judgment is the judgment penalty. In short, the social harmfulness judgment is a penalty judgement.

    Ceng Yuexing (Dean of Kunming University of Science and Technology law school):The investigation of the concept of crime, divided into three categories. Essence of the concept of pure, no country in. Hybrid concepts used in more formal concept, the so-called, is loyal to the reality description. Hybrid concept is divided into two categories, one category is a danger to society, one kind is subject to punishment, on behalf of the judgment of value concept, each of them reflects different methodologies. Hybrid concept too much emphasis on the protection of social order, is also possible expansion. The essence of a crime is only violated law; the legal legitimacy determines the legislation must be reasonable. Hybrid concept is in line with the requirements of persuade through reasoning, fact judgment is only a way to judge the value of the. Social harmfulness is not only the concept of legislation, the legislative and judicial language cannot be separated from the. Over the years the criminal thinking cut off relations with political ethics, social ethics, criminal law to maintain social order, should limit. The criminal law should not increase personal interests and enhance the management of individual and social interests. Pipe harm others to benefit oneself and double-edged sword behavior. The criminal law should have tolerance, forbearance and tolerance of conviction sentencing. Social harmfulness should be combined with the ethical judgment, reflected a high degree of flexibility in the administration of justice.

    Sun Guoxiang (Professor of Nanjing University):In the legislative angle argument not what meaning? Mainly in the judicial conviction is considered harmful to the society? If the expelled? The current judicial practice situation, absolute emphasizes the legality and criminal illegality, damage to the fair, resulting in machinery manufacturing method. Such as embezzlement of judicial interpretation, to register the company, do not distinguish between factors and misappropriation of period, as the profit seeking activities, it is not rational. I argue that in the judicial conviction, to consider the social harmfulness standard. Under normal circumstances, consider the criminal illegality standard can be. But with the development of society, the crime type of diversification and other factors, make the criminal judgment standards conflict but not convicted. Judicial conviction, considering from two aspects. One is in the specification, the specification itself. Such as degree, plot, the purpose of the legislation. In pursuit of subjective and objective factors, subjective and objective factors itself is a reflection of social harmfulness. Another is the standard of judgment, one is with reasonable combination. In judicial practice, both in the use of such; two is the interest measure is also important in judicial conviction; three is the criminal policy; the four is the sharing of risk. On the relationship between criminal law and social harmfulness of first consideration, criminal law, in case of necessity to the social harmfulness for consideration. Therefore, judicial conviction should not only legal, but also be perfectly logical and reasonable.

    Pan Xingcheng (South China Normal University):From the hermeneutic point of view, the provisions in article thirteenth of the criminal law of the social harmfulness is the objective evaluation of the behavior, and the social harmfulness in intent and negligence in this chapter, the social harmfulness into subjective cognition object. Therefore, the social harmfulness is only objective, not subjective. Why the social harmfulness is the essence of the crime? Comprehensive and it's not a crime, but whether the behavior in criminal law circle condition, nor a crime conditions. Scholars proposed the question the harm to society, some people think that the social harmfulness can provide super regulations, this formulation is not accurate. After the introduction of the new criminal law, has lost its legality and conflict context. Some people think that use interest violation instead of social harmfulness is better. At present, the theory of violating legal interests has some metamorphic, crime free. Convicted of the front must be the law, illegal profit.

    Yang Kai (Dean of China Jiliang University law school):Against the social harmfulness not conclusive and law said that there is a certain reason, there is evidence. But the theory of violating legal interests is not science, nor fully. Social harmfulness is not conclusive opinions and reasons related to three issues: the concept of fuzzy, uncertain; second, that the social harm is the political assessment rather than legal concept; third violates the principle of legality. Social harmfulness is uncertain, fuzzy is a fact, but not necessarily is not science. In a society ruled by law, all must have the law to measure, the understanding in criminal law combined with other laws, cannot be read in isolation. Social harmfulness negation no laws to accurately comprehend. Social harmfulness negate concept of harm to society's judgment is a problem. Not an accurate understanding of the basic concepts. The theory of violating legal interests, just changed a concept, the theory of social harm is the overall, and the theory of violating legal interests is only a part to part for whole, obviously is not scientific. Against the social harmfulness not conclusive and law benefits have one thing in common, that is not harmful to the society for defining and understanding the science. The premise is not scientific, perspective taking.

    Liu Shixin (Professor of Nankai University):Don't cancel the social harmfulness theory in our current criminal law theory, I think the social harmfulness theory is a basic concept. Social harmfulness is the legislation or judicial concept? I think that should be considered in legislation, also want to consider in the administration of justice, otherwise the vile, cannot do judicial interpretation; the relationship of the theory of social harm and constitution of crime: the social harmfulness is the nature of the crime, the emphasis is the concept of crime. The constitution of a crime is a crime pattern, is the technical means, should not constitute a theory research in crime. In the evaluation of social harmfulness of crime, they are the relationship between content and form, I think in the extension is not absolutely corresponding; the content of social harm: harm to society is necessarily subjective concept of unity, but in the study of the concrete problems did not prevent the subjective and objective separately, objectively discusses. I think its research in higher levels, not as in the subjective and objective relative separation level independent understanding.

 

           Second group: Legislative control adjustment and the death penalty structure

    Host.Chen Zhonglin(Dean, Law School of Chongqing University, vice president of the society of China criminal law)

    Host Chen Zhonglin:Issue we this group of today is the legislative control and adjustment of the death penalty structure. It is of great significance in both theory and reality problem, is also the "criminal law amendment (eight)" (Draft) two the biggest bright spot, director Wang Shangxin to participate in this meeting, want to listen to your views, please actively participate in, below please Mr. Gao Mingxuan.

    Gao Mingxuan (College of criminal law science, honorary Dean of Beijing Normal University, Professor of law, China honorary president):

    This issue is the "criminal law amendment and (eight)" (Draft) cohesion more issues, "criminal law amendment (eight)" (Draft) involves the general revision, the structure is not the specific provisions of the revised one. Be the first to bear the brunt of the death penalty is reduced, the death penalty as a kind of punishment, general provisions applicable to criminals who committed extremely serious crime, "extremely serious" this restrictive conditions stipulated in the general principle, but in the specific provisions of the death penalty charges or more, 68. In the world of criminal law is more outstanding, some South Korea's death penalty charge too much, but its reflection in the single criminal law, unlike China is reflected in the criminal law. China's death penalty hung 68 crime, economic crime is very significant, hanging death also many. The 1979 Criminal Law sentenced to death is not much, there are 29. Then during the campaign, and has formulated the special law has been increased, reaching 71. To the 1997 revision, reduction of 3. Scholars have long views, advocating appropriate to reduce, also proposed to gradually reduce the views, opinions in the early 80's is mentioned, but the 1997 revision of criminal law, this opinion has not accepted, so that to maintain 68 charges. Scholars have repeatedly called for, most scholars gradually reduce. The opinions of these years has been proposed, lawmakers have also felt the need to apply reduced the death penalty, so will the death penalty approval by the Supreme People's court in 2007, they strictly control of death penalty, the death penalty has declined. In short, the judicial control can be done, but the legislation does not change. The "criminal law amendment (eight)" (Draft) was proposed legislation according to academics, suggested that the judicial circles is proposed, to do the research, finally, puts forward the proposal to reduce the 13 crime death penalty. These crimes rarely used, mostly non violent and economic crimes. Remove the no harm to the overall situation, will not have much impact on social security, so they set off, this is a serious matter, the guide and inspiration is very big. In 1979, the legislation, the death penalty charges no less a. The 7 amendment but also without any increase in a death penalty, the "criminal law amendment (eight)" (Draft) to reduce 13 death penalty charges very big significance. Study the question of the death penalty, not only the domestic international attention, are also very concerned about the. Foreign scholars constantly represented and contact. But we have our national conditions, we should abolish gradually, part of the. This opinion is legislative attention, in the "criminal law amendment (eight)" (Draft) reflected, that our country, the party is not immutable and frozen, this is the first step, if released, will not have a bad influence on social security, we can gradually abolish the death penalty. This has strong implications. Misreading has the death penalty for the crime of corruption and bribery, cause negative effect, has aroused the abolition of the death penalty have some opinions. But the legislature reaffirmed the "criminal law amendment (eight)" (Draft) has never been involved in corruption and bribery crime death penalty. No consideration, no discussion, put forward to modify.

    This amendment shall be sentenced to life imprisonment without change, sentence commutation condition strictly, a major meritorious service, after the expiration of the period of reduced to 20 years, the court has the right to grant a full death was reduced to 20 years or life imprisonment, for those serious violent crime, have the right to consider not commutation. The death sentence with a reprieve, life imprisonment execution time is not more than 10 years, generally in more than twenty years. Although sentenced to death with reprieve, life imprisonment, but also has the practical implementation of ten years out, let everybody thought the punishment was too light. The main let no period, are to be sentenced to the practical implementation of the long term. Requirements are to be sentenced to combined punishment for several crimes from the past 20 years to 25 years.

    The amendment to the criminal law system on the large side in the elderly and wider. In the past the criminal law for the elderly did not reflect, consider noticed, in judicial practice. The "criminal law amendment (eight)" (Draft) also reflected the provisions of the trial, more than 75 years of age, the elderly do not apply the death penalty, probation conditions have a lenient to reflect, as is a new problem, a breakthrough. So also caused controversy, some people do not agree, but after all the ability of elderly crime, the crime ability is weak. At the same time, combined with the study of the history of our country, should treat the leniency. The Frank also have clear rules, the provisions of the criminal law is the last surrender lenient circumstances, the judicial interpretation reflects, with Frank can consider, but for leniency to those who confess the incomplete, in judicial practice, the trial while the appropriate master, but not a legal. This rose to its legal leniency, cash for leniency to those who confess.

    Although the change is not very full, but still made careful consideration, since the implementation of the 1997 criminal law, the judicial practice experience fixed. There is also a new change, is the community correction. The community correction, the penal code in front of any law, regulation, probation, parole is to carry out community correction. In the past the community correction also include deprivation of political rights and execution of sentence outside prison. But the deprivation of political rights is also thought to be the community correction, there is no basis for. The probation is considered not procedural law, criminal law, so this is not involved. But the deprivation of political rights with no provisions for the community correction. Community correction is in parts of experience, but there is no community correction law, the "criminal law amendment (eight)" (Draft) on the provision of community correction "will promote the introduction of community correction law".

    Host Chen Zhonglin:High teacher to the "criminal law amendment (eight)" (Draft) made of very good, from the comparison between the Chinese and the world, the main problems involved, such as the "criminal law amendment (eight)" (Draft) guidance and inspiration, lenient punishment for the elderly, to determine from the wide legislation, problems of community correction is a wonderful explanation. Please Fellow Deputies will this issue and "criminal law amendment (eight)" (Draft) closely, to speak.

    Xu Ruiduan (deputy director of Gansu Provincial Intellectual Property Office):Gansu Province Prison Administration against detainees invention creation, made a way, so that some people play one's ability and cleverness in the transformation at the same time, make a contribution to society, as stipulated in the commutation of the sentence. This approach requires us to formulate the relatively simple, there are 15, based on the summary of other provincial practice. The specific implementation is performed by the prison administration bureau of Gansu Province, Gansu province until the property administration for review from the patent requirement, make comments. But in the practical problems in operation, because the invention, utility model, design the technical content of the three different, so in the specific criteria should also be different, formulate measures, the provisions of the. The provisions of the criminal law, a crime can be commuted. Prisoners have invention, utility model and design in prison, can be used as the meritorious performance, but only if the technology innovation and patent regulations, on the other hand have no corresponding regulations, it is not fair to the prisoners, unfair, this is one of the problems. The content of three kinds of patent technology of how to grasp and measure, and also work in practice no good solution to the problem. Third is a universal problem in this way, how to make the prison administration more and more prisoners know, how to understand and master, hope all of you scholars on this work to develop the valuable suggestions.

    Zhao Rong (Professor of Gansu Political Science and Law Institute):Gansu Provincial Bureau of prisons and intellectual property Bureau jointly issued the "creation, invention of criminals in prison technical innovation award, reward approach" (for Trial Implementation), innovative content. Including general principles, specific, annex. Specifies the type of recognition and provides for specific conditions. The comparison principle for meritorious, intellectual property rights related to major meritorious service content in criminal law "measures" provisions, the specific.

    Wang Shangxin (director of the NPC Standing Committee Law Committee of the criminal chamber):This problem relates to the larger, suggestions: ① should further clarify major meritorious service which, including whether the utility model and design; now that the highest law judicial interpretation, if you want to make specific provisions, should be carefully.

    Hu Wenhua (Jiuquan city jail):I long to work at the grassroots level, "criminal law amendment (eight)" (Draft) modifications are feeling, "criminal law amendment (eight)" (Draft) in prisons, inmates in prison policemen has aroused strong repercussions, that management more difficult to do, feel more sit prison inmates there is no hope. The most difficult is life imprisonment and death prisoner, I think the actual implementation of the length of the sentence is not legislation, but implementation issues, is due to the implementation of standards is not a result, different prisons for the same crime, the same conditional execution sentence will not be the same; ② about commutation, parole conditions. "Prison Law" after the enactment of the prisoner, hope have a unified national standards. Regardless of regional, transformation of the environment, the economic developed or backward, reform should be a unified standard of thinking and behavior; the parole release society, are likely to offend again. The prison committed crime rate again as assessment of prison management level, so the prison rather commutation nor give parole; identification of mental illness. Jiuquan prison please wine steel experts of psychosis was 18 people, suspected mental illness has 5-6, accounts for 1% of prisoners. This part of the prisoner has management difficulties. Experts can give advice and suggestions on the above.

    Host Chen Zhonglin:This problem is very representative, but also in the future legislation should pay attention to the problem.

    Zhang Xin (Gansu province Tianshui prison officers):The criminal sentence of reprieve. For serious violent crimes in 8 no longer commutation problem. Commutation is serving at the actual performance. If the people's court has the right to decide, which is based on the types of the crime, the crime is very serious concerns. There are contradictions. The prison will have meritorious service, major meritorious service, as a prerequisite for commutation. If the serving process was given a suspended death sentence for violent sex offenders in the future a major meritorious service and how to deal with; if the parole, commutation conditions are too strict, prolong its actual execution date time. The prisoner will give up on themselves, will bring the negative influence, they can only fight, accepts education and reform is not good; the older the statutory mitigating. 75 years old is the prescribed age. I think 75 year olds in some high threshold. Based on the reality of the situation and suggested that the provinces make different provisions of the disabled prisoners. Safety problems. If in the course of disability, whether to give loose commutation condition on the infectious disease; the prisoner. Could not set room. If you can lower the threshold, also should give loose conditions.

    Wang Shangxin (director of the NPC Standing Committee Law Committee of the criminal chamber):If these people into the society, will be more dangerous. The prison to share this part of the responsibility. And according to the commutation of sentences and in prison performance comprehensive judgement.

    Host Chen Zhonglin:Prison thing can to the society, how to improve the prison environment, can carry out the educational reform of criminals, and will not lead to some problems in the management of the prison, reform does not affect other criminals.

    Feng Jianjun (Zhejiang police Politics Institute):China's prison form, basic consistent, heavy, light prison prison unlike abroad. But we are too heavy, so that we in the executing process, the pressure is too large. But now China community correction is weak, can make the execution of penalty mitigation implement.

    Liu Ningsheng (Associate Professor of Gansu Political Science and Law Institute law school):The teacher's advice to Gao Mingxuan, but I think that China's death penalty charge is reduced gradually, but the pace or some small, to endanger national security should also abolish the death. Because this kind of crime is rarely used; the duty crimes of deprivation of political rights should be strengthened, deprived of the content should be refined; the criminal in prison sentence resist reform problem. 1997 the revised criminal law, regulations only intentional crimes, penalty crime was executed, this condition is also too loose; the "criminal law amendment (eight)" (Draft) to the people's court has the right to decide decided to have special conditions may be commuted in criminals after the expiration of the period of at the same time make a suspended death sentence. What with the condition, whether to the discretion of the judge is too large, is never less, still can be in execution can be reduced. All need to be further clear.

    Zhu Zuyang (Zhejiang province Zhuji city's):On the detention punishment have what development direction. You can go home every month 1-2 days, actually did not implement, will change, in addition, there is no clear provisions of criminal detention and prison for crimes; ② synchronous video belong to a kind of criminal evidence problem; scope of the subject of crime of malfeasance. The members of the rural grass-roots organizations, such as village cadres, can become the subject of crime of malfeasance. Treatment of village cadres is not clear, in addition, the private enterprise of supply and marketing personnel, the marketing manager should prevent that didn't prevent the signing of the contract, resulting in heavy losses, shall be investigated for criminal responsibility is the.

    Yang Jianlin (Gansu province Gangu prison):To mainly talk about community correction problem, I found the following problems in the study: what are the security measures of community has the ability to complete; what are the standards of community correction and the degree of. As to Tianshui road survey found that parole, medical parole work intensity of criminals, not to mention the community correction, despite the provisions can not leave, but the supervision is not in place; in the countryside, village Party branch, village director business unskilled. As the community staff. The criminal gave them, can complete the task.

    Ruan Qilin (Professor of China University of Political Science and Law College of criminal justice):The focus should be on the judicial way to abolish the death penalty, legislation. From the world point of view, is through the (court) judicial gradually reduce and even does not apply, or is not executed, the death penalty is to cease to exist except in name degree, then from the legislation to abolish the death penalty; applicable standard unification, to gradually replace the immediate execution of death penalty reprieve, use the reprieve system; the legislation increases student punishment must be careful.

    Chen Wei (Southwest University of Political Science and Law law school):This revision of the death penalty. From the judicial control level, is still the behavior person case plot, but the danger is not considered the plot. The reason why the elderly and young as the lenient object is also based on the consideration of social risk; understanding the death sentence with a reprieve prescribed after a period of 2 years, can not be commuted. Personal danger has a change, why can't the commutation; ③ probation problems. "Criminal law amendment (eight)" (Draft) on the standards applicable to probation, no substantial change. Just pay attention to case plot, without considering the case before and after the case; special recidivist change, three kinds of crime is not one to one, the legislative consideration, is only in order to enlarge the applied range of recidivism.

    Li Yongsheng (Professor and director, Southwest University of Political Science and Law law department):The application of the death penalty for the crime; the death penalty is limited to serious violence crime, the concept of the current violence crime more confusion; the death penalty is to be deprived of life, the corresponding penalty is only limited to the person and the person related criminal punishment; the death penalty only with people's life with the equivalence of the crime; the death penalty only for no fault of crime victim. In addition, the problem about death, is a feature of our country. With the death penalty is being paid more and more attention, China's death penalty proportion is higher, I think we should abolish the death sentence with a reprieve. Statistics the number of death penalty, because their properties are the same, only different in execution, so, the sentence is to account, easy to criticize China's human rights violations as excuse to leave. For the sin sentenced to death but need not be executed immediately can be life imprisonment not commutation instead.

    Wang Xuepei (Professor of Guangdong University of Business law school):I think the organization prostitution crime death penalty should be abolished. The organization prostitution crime and 13 charges the cancellation of following the same point: the applicable rate is low; from the social harmfulness of this crime in the criminal law system in the proper position. The provisions of the criminal law of the crime of organizing prostitution and forced prostitution, the two crimes is similar, but the social hazardous size are significantly different, social harmfulness crime was significantly higher than that of the former crime. Also sentenced to death, in the legislative logic, in violation of the principle of suiting punishment.

    Host Chen Zhonglin:The death sentence with a reprieve make commutation, the court may, according to the circumstances of the crime situation into account, such as the need to consider the facts of the crime, also want to consider the implementation of 2 years, it can be suggested by the prison to the court; in the "no commutation" can add "non major meritorious service may not sentence" this restrictive conditions ③ I prefer; understanding is, sentence commutation is directly reduced to 30 years in prison. Reduced to 30 years of prison later space. Not only can the commutation or parole. The prison is the most favorable choice.

    Yu Zhiyue (Zhejiang Provincial People's Procuratorate of a common criminal professional team):The death sentence with a reprieve committed the actual sentence provisions or too short. According to the actual situation, age and other comprehensive judgement. According to the characteristics of individual criminals, serving for many years before parole decision. The court should be given the discretion, which according to the actual situation of flexible master; ② parole on this kind of crime by the Supreme People's court, and the people's Procuratorate to put forward opinions, amendment (eight) from the program made this clear; the combined punishment for several crimes in prison after 20 years to 25 years, there is not much significance. If the absolute sum term is higher, such as more than 35 years or even 40 years, decided to implement the punishment after the sentence may be provided for 30 years. To prevent crime by penalty, should not be too much to consider prison burden.

    Wang Zhiyuan (Associate Professor of Jilin University law school):Mr. Gao Mingxuan stressed the significance of the death penalty for modifications, I agree. But there are two worthy of reflection: first, director Wang said 13 charges less or no application, which reflects the number of death penalty in our country has not been the actual reduction; second, from the existing range of penalty provisions, the same foreign crime, the penalty rate higher than other countries, running at a high level between crime and crime, punishment, cell range is not great. The penalty shall be designed to gently, grid crimes should be obvious.

    Ge Xiangwei (Department of Justice Crime Prevention assistant research fellow):The criminal law amendment is in adjusting the penalty structure made great efforts, but also bring many challenges to the prison work. Foreign practice is less than the commutation, parole. Our approach is different, the question now is what these people do not commute, in prison, how to solve the prison pressure. In addition to our low rate of parole, parole should be how to implement.

    Wang Shangxin (director of the NPC Standing Committee Law Committee of the criminal chamber):Formulating plans, give full consideration to the prison conditions, at the same time, fully listen to the views of the Department of justice, and a unified. Structure of penal system properly is the key factor to consider, if appropriate, prison if not adapt, also want to gradually adapt to the. Prison conditions should be echoed, legal requirements, not requirements of national laws conforming to the requirements of the prison.

    Miao Miao (doctoral candidate of University of Oxford law school):The abolition of death penalty has the process of judicial legislation first, after practice. If European countries. In some countries to join the European Union, has agreed to abolish the death penalty as a condition of membership. Director Wang, how do you think of our country's legislation, judicial or legislative and judicial or to do many things at once problems; ② how to measure China realistic situation; the public opinion. Public opinion determines how specific, accurate.

    Host Chen Zhonglin:Thank you very much Mr. Gao Mingxuan, director Wang Shangxin to participate in this discussion, they gave us sweep down irresistibly from a commanding height to explain, we benefit a lot from. In addition, also very grateful to the delegates wonderful speech.

 

          The third groups: the punishment and prevention of organized crime and drug crime

    Host. Qu Xinjiu(Dean, China University of Political Science and Law College of criminal justice China law criminal law research vice president)

    Host Qu Xinjiu:Organized crime and drug crime is highly concerned by the society of crime, the crime of the underworld organization has two problems: Combat ineffective and crack down on excessive. "Criminal law amendment (eight)" (Draft) of the underworld society crime increases the penalty of confiscation of property, the scholars have different opinions. With China's economic and social development, drug crimes are increasingly rampant. Therefore, two issues we are discussing today is very meaningful.

    Li Xiaoming (Professor of Soochow University law school):Social basis for the existence of the underworld crime. There are many social basis for the existence of the underworld crime, just to name a little -- judicial authority. The underworld crime exists and no judicial authority. The judicial authorities not to prosecute people a fair result in some time, objectively to the crime of the underworld organization provides the market; how to treat or solve the crime of underworld organization. From the perspective of Criminology of the crime of the underworld organization existence should be re understanding, we should be objective, rational, sober look at the crime of the underworld organization; the "criminal law amendment (eight)" (Draft) on the provisions of the crime of the underworld organization is consistent with its law of development. Increasing the penalty of confiscation of property, with the characteristics of the underworld organization, namely, the pursuit of economic interests, the deprivation of property in a certain sense can be cancelled or reduced recidivism ability. The special recidivist, we very much agree with.

    Lou Bokun (Professor of Zhejiang Gongshang University law school):The phenomenon of the evil forces of order problem. We should fight against the prototype or mature stage; the strike force and judgment basis of ineffective or strike range size should be the law. Therefore, very important for defining the underworld property organization; the underworld property organization should be defined by its characteristics. The underworld is a kind of social organization, characteristic of the underworld organization is illegal in the region characteristic of social control. I think that should be the crime of the underworld organization is amended as "Underworld (nature) crime".

    Zhao Binggui (Professor of Liaoning University law school):Criminal law scholars should not only focus on the theoretical level, should also pay attention to practice. Whether such a system and methods should be improved? We only have a crime "black office", this system is whether reasonable? The legitimacy of the public security organs take everything on oneself practice is not conducive to crime. Scholars should not only pay attention to the definition of a crime, crime constitution theory problem, should also pay attention to the system and the method of.

    Mei Chuanqiang (Professor of Southwest University of Political Science and Law law school):I add, the public security organs in the campaign although is very strong, but not the public security organs investigation cases, the procuratorate and the court has convicted. Institutional issues should pay attention to, but the scholars on the definition and the crime of underworld organization constitutes the function theory of the crime is great.

    Zhao Binggui (Professor of Liaoning University law school):I continue to talk about second issues. "Criminal law amendment (eight)" (Draft) increased the Mafia Crime the penalty of confiscation of property. I think the increase of property punishment should be very cautious. In practice there are expansion approach, some confiscated its legitimate property. The other is the organized crimes of the underworld society crime number namely concurrence. Some behavior in the repeated evaluation in black.

    Liu Defa (Professor of Zhengzhou University law school):The public security organs in order to find the existing achievements, expand the results of the real life, some do not constitute the underworld property organization in the fight against infinite exaggeration; the practice in specific criminal evidence collection, the facts of the crime that is broad, the organization with underworld society crime against the expansion; the provisions of the law. Four of the crime of the underworld organization characteristics of the application of law concerning the crime of the underworld organization's case in December 4, 2000 the Supreme People's court "interpretation" in made specific provision, but many problems in the actual operation. Such as "economic power" of the identified, should be acquired in the black social development process through illegal and criminal activities or other means of economic interests. A "small", "early", but not without limit. We should introduce some really effective, objective standard. The underworld crime seems to be related to the previous "hooliganism", has also become a pocket crime, put a lot of behavior are loaded into.

    Host Qu Xinjiu:The previous some poor description of combat, some of the underworld crime against the expansion of that, I agree with the. I tend to cancel the underworld crime. The underworld property organizations China does not have the typical characters, such as the name, flag, ceremony, customs and so on, not affecting such crimes. I'm against increasing the penalty of confiscation of property, the "black" the trend of widening.

    Shi Jinghai (Professor of Southwest University of Political Science and Law):Why in practice, against the crime of the underworld organization in 70 above denies the underworld crime? I agree with the song the teacher said China no typical underworld society, because it is not very typical characteristics, such as the name, flag, ceremony, customs etc.. Some people do not know which are part of the underworld organization, according to their crime underworld organization is not reasonable.

    Hacken Lee (Zhejiang province Jinhua City People's Procuratorate Deputy Attorney General):The existence of combat ineffective and crack down on excessive problem in a practice, the reason relates to the crime of the underworld organization definition, characteristics and so on; the formation time of the underworld property organization. Organizations exist long time can be determined for the underworld property organization? I think, as a music teacher, the crime of the underworld organization may cancel, but other crimes such as crime of forced transaction crime, penalty should be improved; that the members to actively participate in organized crimes of the underworld society. How to distinguish the crime boundary organization other members involved in criminal activities. In addition, the requirements of "knowing" is the underworld property organization?

    Host Qu Xinjiu:Our judicial system and reform. I think that if the strict implementation of judicial interpretation of the provisions on the crime characteristic of the underworld organization, or be able to accurately identify the underworld property organization.

    Mei Chuanqiang (Professor of Southwest University of Political Science and Law law school):I don't agree with the "criminal law amendment (eight)" (Draft) to the crime of the underworld organization for special recidivist, because of its social harmfulness is lower than the crime of endangering national security.

    Shi Jinghai (Professor of Southwest University of Political Science and Law):If identified as a special crime, and repeated evaluation.

    Host Qu Xinjiu:Below we discuss drug crime.

    He Ronggong (Associate Professor of Wuhan University law school):I put forward some problems practice our group met in the research of the problem:, the type and content of about drugs. The law clearly stipulates the three: opium, methamphetamine and heroin, other provisions of other drugs. Now the problem is that the new drugs can be convicted? Several drugs in a mixed how to identify the drug crime death penalty cases. The drug content less not sentenced to death. But the "content" is how many? Hold in practice is not allowed; problem and foreign crime; the special crowd of drug transport problems. Such as pregnant women, AIDS virus carriers to transport drugs to deal with property penalty; the drug crime. The main problem is the burden of proof, how to prove the proceeds of crime; the drug crimes "subjective knowing" what is the criterion to judge; criminal issues in narcotic crime and drug conversion.

    Report and free discussion

    Host.
    Ding Muying (Professor, National Prosecutors College China law criminal law research consultant)
    Chen Zhonglin (Dean, Chongqing University School of law China law criminal law research vice president)
    Ruan Qilin (Professor of China University of Political Science and Law College of criminal justice)
    Zhao Guoqiang (Professor of Macao University School of law)

    Host Ding Muying:Now please first group on behalf of Professor Meng Zhaowu to speak.

    Meng Zhaowu (Professor China Criminal Police Institute):Our group discussion whole appears to be arranged in good order, we mainly from the macro and micro two aspects of social harmfulness are discussed: the social harmfulness, the scope and the significance of attribute. Professor Feng Yadong thinks that the social harmfulness is the social value evaluation, value evaluation is the evaluation is the premise of the fact. In the legal range, only is the evaluation of human behavior, cannot be extended into human behavior, not contain harmful to other human behavior. The concept of social harmfulness has very important significance in China's current criminal law, not the social harmfulness from the criminal law from. Southern China normal university teacher Pan Xingcheng admits the social harmfulness is the value evaluation, social harmfulness into subjective cognition object. Shanghai University of Finance and economics professor Zhao Weijia think, the social harmfulness from the two aspects of judicial, legislative research, the social harmfulness into criminal illegality; relationship between social harmfulness and the concept of crime and crime. Research on social harmfulness from the logical and methodological perspective, from look at present has three kinds of forms, Professor Zeng think concept hybrid from the whole show its rationality. Professor Ceng Yuexing thinks that the criminal law should not pipe not self damaging behavior. Professor Ou Jinxiong thinks that the social harmfulness has a certain status in the constitution of a crime, should be raised to a crime pattern. Professor Liu Shixin thinks that the essence of social harmfulness has the status of a crime is a crime, judging mode, is the technical means, should not constitute a theory research on crime, therefore, in general or should assess the social harmfulness; in judicial practice, cognizance crime whether to exclude harmful to the society, on the whole we emphasize in the determination of certain social harmfulness of crime. Professor Sun Guoxiang thinks that crime in law and criminal illegality is a crime against need the protection of human rights, too much emphasis on cause mechanical law enforcement, so in the conviction of the judgment should first consider the criminal illegality, but in some cases it is necessary to consider the criminal illegality, but also consider the social harmfulness, combined the legality and illegality of be perfectly logical and reasonable. Professor Yang Kai thinks that the law theory and the social harmfulness not yet has its rationality, but does not support. The content of social harm is fuzzy, fuzzy doesn't mean it's not science, social harmfulness is not only a legal factors, also contains political factors, but not because of politics will be excluded.

    Host Ding Muying:Now please first group representative Peng Wenhua teacher speak.

    Peng Wenhua (associate professor at East China University of politics and law):I mainly focus on our team from the details of the problem for some report: the social harmfulness of the formal and substantive dispute. A stick form, namely the criminal illegality, another group adhere to the social harmfulness essence. Because the legislation technology is not perfect, the criminal law is not possible to have social harmfulness behavior all societies are defined as criminal. The debate is disputed, it directly influences the judicial interpretation, reflects the normative governance or the need for punishment in criminal law; the objective and subjective social harmfulness. Legal interest is evaluated from the objective aspect, social harmfulness is objective. Some people think that the social harmfulness is the host objective unification. The majority in favor of social harmfulness is the host objective unification; the social harmfulness of the qualitative and quantitative. Social harmfulness quality is according to the behavior to determine the nature of the social harm, the amount of not only according to the behavior of matter, the key depends on the social harmfulness to a certain degree, however, how this in the criminal law is also a manifestation of a problem to be solved.

    Host Ding Muying:Now second groups on behalf of Qi Lin Ruan professor.

    Ruan Qilin (Professor of China University of Political Science and Law College of criminal justice):Professor Gao Mingxuan introduces the process China death penalty legislation, the first 29, and later extended to 68, as prescribed by the many specific provisions of the absorbed into the criminal law. The changes around the eight amendment, the modification of the charges of death penalty, embodies the development trend in today's world and the requirements of international communication; Professor Zhao Rong of the Gansu Provincial Intellectual Property Bureau Xu Rui segment and the Gansu Political Science and Law Institute, put forward "to create the criminals in prison, the invention of Technology Innovation Award, reward measures" (Trial), introduced, innovative content.

    Deputy director Wang Shangxin made clear further major meritorious performance, and points out some specific provisions in place to comply with the provisions of the law, not beyond the scope of authorization; Gansu Political Science and Law Institute associate professor Liu Ningsheng made a speech, that China's death penalty charges although in decline, but the pace a bit slow, should reduce the crimes of endangering the state security of the death penalty, but the duty crime in the deprivation of political rights should be strengthened and specific, death with reprieve if negligence crime should also be considered approved the death penalty; Professor Chen Wei that the standard of death penalty should be more careful. Not enough consideration to the factors of personal danger; Professor Li Yongsheng that: ① the death penalty for the crime; the death penalty is limited to serious violence crime, the concept of the current violence crime more confusion; the death penalty is to be deprived of life, the corresponding penalty is only limited to personal and people body related criminal punishment; the death penalty only with people's life is equivalent to the crime; the death penalty only for no fault of crime victim; Professor Wang Zhiyuan of the Jilin University said the limitation of death penalty, amendment eight abolished are rarely or never charges, step is too small, it can also be more some big. Regarding the increase of penalty should be cautious, because our students punishment from the crosswise comparison is heavier; Zhejiang province Zhuji city's comrade Zhu Zuyang put forward about the detention punishment every month can go home 1-2 day holiday, actually did not implement. Synchronous video has not implemented.

    Host Ding Muying:Now second groups to speak on behalf of Gansu Tianshui prison Zhang Xin.

    Zhang Xin (Gansu province Tianshui prison officers):First sentence offenders the problem. The 8 kind of serious violent crimes shall not commutation problem. I am confused. Confusion is this is at odds with the long-term implementation of the prisoner a way out of the policy, the commutation is to look at the actual sentence expression, sentence criminals in prison execution of at least 20 years, more than 25 years in. Once the repair the relevant provisions of the implementation of eight, will cause the resistance to reform criminals. In addition to a desire to criminals, but no repentance space. It brings tremendous difficulties to reform; two perplexity is this is against the law and policy of the current. Clear condition of commutation in law, and now even repentance nor commutation. Professor Chen Zhonglin in order to solve this problem, this does not rule out the possibility of parole, dying mitigation for a period of 30 years. Then the old people above 75 years old not sentenced to death, causing great pressure to the prison. At the same time, attack and disabled prisoners brought a lot of negative effects in prison, brings the serious economic burden to the prison.

    Host Ding Muying:Four comrades spoke above has been completed, now on the free speech.

    Host Zhao Guoqiang:The mainland scholars study of legal crime structure, not precise. To compare must understand, the focus of controversy is not whether social harmfulness, but placed in what position. Social harm social value is the premise of legal value. Form of the continent law system should condition, solution is the determination of legal sense, social harmfulness is identified from social value, should have solved the problem of the subjective and objective.

    Ou Jinxiong (Professor of Guangxi Administrative Cadre Institute of politics and law):I mainly talk about the legislation practice of social harmfulness. Social harm and criminal penalty structure adjustment should be combined together, "criminal law amendment (eight)" (Draft), the maximum punishment for up to 25 years old, is this why? Social harmfulness as the price of the stock, there is arbitrariness in legislation. At the same time, harm and criminal law society how to connect? Every crime legal punishment is reasonable? Whether these are evaluation? Another problem is the social harmfulness in the legislation of criminal law with and how?

    Ruan Qilin (Professor of China University of Political Science and Law College of criminal justice):Sentencing relates to national culture, political system, which is affected by many factors, more complex. Some countries sentencing lighter, because each country has different ideas, some countries do not have the death penalty and imprisonment.

    Li Xiaoming (Professor of Soochow University):Whether should focus on the social harm and criminal illegality? If the legislation according to the social harmfulness of this standard, in the judicial practice, still according to this standard will destroy this standard? If the emphasis on social harmfulness than justice, how to grasp?

    Meng Zhaowu (Professor China Criminal Police Institute):Criminal illegality is first, social harmfulness is secondary. Two is a common criminal characteristics of legality, before has not been determined, but also in accordance with the crime in law to do, no harm to society can not be punished for the crime. Determine the criteria to the judicial personnel OK? In judicial practice, the judicial personnel completely according to the judicial interpretation of law, otherwise, not know what course to take. In order to improve the judicial team level, the law and legal, reasonable effectively combine.

    Host Chen Zhonglin:Third groups of issues to be discussed are organized crime and drug crime. "There have been some problems hitting" action, is our country criminal law educational world should reflect, review; drug crime is the serious crime, discuss two issues should be very meaningful. Here we first asked Professor Liu Defa of Zhengzhou University speech.

    Liu Defa (Professor of Zhengzhou University law school):I we discussed the crime of the underworld organization content for everyone to do a report. In general, our group discussion to the crime of the underworld organization is widely used, the atmosphere is very warm. Specifically refers to the crime of the underworld organization crime, causes of crime, characteristics and determine the "criminal law amendment (Draft) eight" in the crime of the underworld organization changes etc.. "Criminal law amendment (Draft) eight" the crime of the underworld organization change is mainly reflected in three aspects: one is the four feature to a Mafia crime judicial interpretation of the Supreme Court in the "criminal law amendment (eight)" (Draft); two counts the expression more simple; three is to increase the penalty of confiscation of property.

    Below I talk about specific issues: charges of organized crimes of the underworld society. First of all, some scholars put forward the Mafia organized crime to the crime of underworld organization, reason is to integrate with the foreign criminal law, can control the expansion of the black. Some scholars proposed to abolish the crime, reason is repeatable evaluation problem. "Criminal law amendment (eight)" (Draft) to the crime of the underworld organization frequently relates to charges such as blackmail and impose exactions on crime, crime lower threshold, the crime is not indulgence criminals. I personally think that, on one hand we countries don't have very typical, mainstream, organized, penetration of underworld organization on high-level political organization, on the other hand we changed it to "Underworld" point of view may be a contradiction; characteristics of the organized crimes of the underworld society. First of all, I believe that the abolition of the crime of the underworld organization "protection umbrella" unreasonable. The second is about the economic strength characteristics. "How to grasp the economic power" of the standard? Whether the characteristic increase in "to the pursuit of economic interests,......" Once again, the monopoly in a party to dominate the region how to define? Provisions on "four characteristics" judicial interpretation has the guidance, but in the "criminal law amendment (eight)" (Draft) can provide more specific? Black is to "early", " small", but more important is it right. In some places there is enlargement problem, there are two main reasons: system and driven by the interests of the public security organ; crime of the underworld organization increase the punishment property problem. There are scholars agree, some scholars oppose. Against the scholars believe that specific crime, crime of the underworld organization has been in the provisions of fine penalty, then increase the penalty of confiscation of property is repeatable evaluation in organization, leadership, the crime of the underworld organization, moreover may involve the innocent property problem. I think, economic benefit is a very important characteristic gangdom organization crimes, according to this feature should increase the punishment property.

    Host Chen Zhonglin:Professor Liu in third groups to discuss the crime of the underworld organization made a speech, please Wuhan University where Ronggong teacher.

    He Ronggong (Associate Professor of Wuhan University law school):On behalf of our group on drug crime case to report. Because of the crime of the underworld organization is the current hot topic, we discuss very enthusiastic, relatively short time some drug crime discussion. The meeting submitted on drug crime publishing 38 articles, mainly involves eight aspects: ① drug crimes in the criminal policy; the drug transport problems. The definition of trafficking drugs; accomplished and attempted crime problems, drug smuggling, recidivism problem; make the drug crime constitution characteristic the lure, instigate;, deceive others drug crime; the drug smuggling, identify personnel transport drugs; the drug composition and content of the problem.

    Out here I'll our research group in the study encountered, practice department very confused problem: the content, the drug types, components. The "meeting minutes" specified in the drug content less not sentenced to death, to the "content" to affirm the practice is not a. And drug types, components. Criminal law stipulates three kinds of drugs, practice with over a hundred kinds of drugs, whether to belong to the criminal law of the drugs? It can be sentenced to death? How to determine when the various ingredients? According to the toxicity to fixed or determined by the high content; the presumption for subjective knowledge. What is the presumption rules? Conflict between direct and indirect evidences, the effect of the drug on high. Different drugs can be reduced if the property punishment. The main problem is the burden of proof; surrender, major meritorious service problems and drug crimes. Drug crime is not easy and was sentenced to death, but He Zi is likely to be sentenced to death, whether justice; the overseas evidence; drug crime issues of special populations. How to deal with AIDS patients, pregnant women caught in the crime of transporting drugs; the abolition of death penalty.

    The Qi Lin ruan:Now please free speech.

    Host Chen Zhonglin:First of all, I think the characteristics about the underworld property organization, should cancel the two characteristics of umbrella and economic strength. You only need a character: using violence or threats as the means, forming an illegal control of regional or above the county level above Township industry. If not by violence or threat of violence, will not have serious social harmfulness; secondly, there are drug crime problems: the drug transport is to transport for the occupation, if not to transport drugs for occupation, it should not be convicted of the crime of transporting drugs. If not to transport drugs for the occupation, is very likely that the drug crime accomplice, if the crime of transporting drugs to the death penalty, it is not reasonable. The types of questions. The new drug is regarded as the drug is not appropriate, should be based on the illegal business crime and convicted. ③ drug conversion. No conversion does not comply with the relevant international regulations.

    Li Xiaoming (Professor of Soochow University):I agree to cancel the umbrella organization with underworld society nature of this feature, but do not agree with the above county level for rural area defined above regional, industry. If the expression is limited to a certain area, because in our country, Xiang is big is small, around the different scope.

    Liu Defa (Professor of Zhengzhou University law school):First of all, I don't agree with Mr. Chen to abolish the "economic power" this feature point. If you don't take the pursuit of economic interests as the standard, and many crimes such as terrorism crime cannot be distinguished; secondly, the triad defined region in the township, monopoly over the industry, I don't agree with. I think it is very difficult to define for a specific region, rather than more general provisions.

    Host Chen Zhonglin:Regional characteristics of Professor Li Xiaoming that shows should be limited to the area above the county, township industry. I respond to teacher Liu is: the underworld organization is the pursuit of the illegal control of the township, county, although most performance for the pursuit of economic interests, but there are no such objective. In addition, I oppose the "meeting minutes", for "knowingly" presumption "provisions, shall knowingly" negligence. For the evidence beyond a reasonable doubt, as long as you can.

    Chen Jie (Jilin Provincial People's Procuratorate):A drug crime. First I put forward to the teacher's question very much agree with He Ronggong, this is the puzzle the judicial practice problems, but also the judicial practice hot topic discussion. Secondly, about different components of drug content determination. The drug amount recognized according to distinguish whether the kinds of drugs. Once again, the presumption about that. In cases of drug smuggling very seriously, on the line, it is difficult to deal with, verbal evidence arbitrariness great, how to identify knowledge; the two is the crime of the underworld organization. Characteristics of underworld organization should not be limited to a certain area township, to see the social harmfulness of gangland organization, organization and other content.

Article source:Http://law.hust.edu.cn/Law2008/ShowArticle.asp? ArticleID=8560&Page=2