One, the criminal reconciliation procedure into the law

   In 2012, "criminal procedural law" the second important changes since 1979. The modification involves the content is very wide, very attract sb.'s attention is the fifth series about the special procedures, and the most eye-catching is the three provisions on criminal reconciliation program. If the Chinese criminal litigation practice and academic trends a little attention, you'll notice, the three articles of the criminal reconciliation system in Chinese since 2001 as a pilot experiment theory is introduced, 10 years of judicial practice and law and to provide product support theory by participating in judicial practice research, academic discussion. Furthermore, the new "criminal procedural law" the regulation of the criminal reconciliation system is a product of Western influence, the criminal reconciliation system judicial practice, scholars advocate concerted efforts, is a typical specimens of Western system in china.

   Article three provisions of the new "criminal procedural law", but put it in the following problems: (1) the first analysis of the foundation three provisions, namely China judicial practice and academic discussion; (2) to analyze the gain and loss of the power structure between the three provision itself absorption, the sublation of law the theory and judicial practice, (3) and recommendations.

   Two, the basic background of law

   A major revision of the criminal procedure law, the public prosecutor, law, lawyers, scholars, the public will not only their own "interests" (or "gain") in a certain way expression in the practice process, and all kinds of views, but in the current state of the situation, the future may have progress and other factors continuous dialogue and compromise. Furthermore, the amended Criminal Procedure Law (in fact, also including the first code of Criminal Procedure Law) is a product of the forces of game, which has repeatedly. On the criminal reconciliation system into the law can also be such as observation, analysis as follows:

   First of all, from a macro perspective: the concept of a harmonious society

   After the reform and opening up, the total goal of the state is to realize the modernization of taking economic construction as the center. This modernization will bring about not only the material life, communication tools and other tangible changes, more to changes in social structure, class, field of intangible ideas, culture. Between the start and end there are several stages, can be called the transition period; during this period, the old and new mixed, not only the "new" convenience, more "new" potential negative, at the same time "the old" negative like ghosts circling in the "new" around. They then showed society, a series of legal problems, such as the gap between urban and rural areas, the gap between rich and poor, class, house demolition, the employment of college students, some of which also lead to group events.

   In response, the party and the state in addition to continue to adhere to the basic state policy of taking economic construction as the center also advocate Scientific Outlook on Development, the establishment of a harmonious society, in order to achieve efficiency with due consideration to fairness. The judicial practice of criminal reconciliation system is the prosecutor, advocate the establishment of a harmonious society, an important measure Scientific Outlook on Development or the concept of a harmonious society is the most important practice of the macro background of criminal reconciliation system in the field of judicial practice of the party and the state. From the 2002 introduction of the people's Procuratorate of Chaoyang District Beijing city "Chaoyang District people's Procuratorate light injury case handler implementation rules", the practice gradually extended to the other judicial departments, and the formation of the great in strength and impetus of local judicial practice.

   Secondly, to observe the judicial context

   China modernization also includes legal, judicial modernization. On the one hand, through legislation construction of the legal system, has been the beginning of a Chinese socialist legal system scale, by reforming and perfecting judicial procedures set right, the procedural consciousness. Presided over the Supreme Court during the president of the former Supreme Court Xiao Yang, the judicial policy to guide the judicial practice, formed continuously strengthen the judgment rate, reduce the proportion of the phenomenon of mediation. Advancing China legal, judicial modernization, but on the other hand, it also brought some negative effects: the specific dispute may have been solved, but the parties, especially the criminal victim's mood is not smooth, but also because there is no victim assistance system supporting ran into difficulties of life. These negative factors more or cause other retaliatory action or petitions.

   From another perspective, the rapid development of the technology, the convenience also showed negative: Science and technology make people do not live in a static society but in a flow state of society, thus people clashes, disputes, criminal cases and the traditional social comparison increases rapidly, and the Internet can also quickly will these information, events around the world, national, and then at the National People's scrutiny, the judge in the judicial has not been fully realized when they often care for this and lose that. The criminal reconciliation system can avoid this point, it can consider all demand, at least relative to the current social situation, this system has achieved this point.

   Thirdly, the judicial practice background

   The rise of the criminal reconciliation system in China in the background of pilot, Beijing Chaoyang District people's Procuratorate began in 2002, after nearly 10 years of efforts in the country have formed a very powerful judicial practice landscape. Reconciliation with different China foreign criminal, criminal reconciliation system in the judicial practice, according to the current situation Chinese society, in fact has been extended to the following areas:

   (1) juvenile crime, crime of college students, such as the judicial practice of Sichuan province. Teenagers, college students sheshi not deep, is in the study, the optimal age, the job such as Miss, they are very difficult to continue learning opportunities for further studies. Looking to the future, the misdemeanor cases and the victim by criminal reconciliation on their re socialization. (2) minor crime, criminal negligence. In this kind of crime, or not harmful to society, either subjective malignant small, such as the Beijing Chaoyang District people's Procuratorate through the light injury case procedure formulation of the "implementation rules". (3) the death penalty cases. The most controversial: the judicial organ has not issued the relevant policies and documents, but according to the investigation of Public Security Affairs Department of the western region, the universal existence, practice sector as a whole is supportive. In contrast, the support is not a lot of scholars in. If as a fact, it is a type of Chinese criminal reconciliation.

   Finally, from the scholar observation

   The criminal reconciliation system although first by scholars from Western introduced to, but to promote judicial practice to really make Chinese scholars to pay attention to this problem, we produce a large number of academic papers, in 2002 after a dozen years of doctoral dissertations and monographs.

   Although some scholars deny the legitimacy of the criminal reconciliation system, but the vast majority of law scholars hold positive attitudes towards, and proposes the construction China criminal reconciliation program proposals from judicial practice Chinese. Although they also disputed, even on the relationship between criminal reconciliation, the criminal understanding, plea bargaining, the criminal supplementary civil action, recovery of the justice of conflict, but no dispute as to the practice of this system in Chinese, there is not much controversy on the specific scope of application, such as a minor injury cases, case of negligence, juvenile delinquency college students' crime, except of course, death penalty cases; at the same time, the actual operation of the process of criminal reconciliation program has reached some consensus; but also some disputes, such as the leading questions about who the criminal reconciliation procedure, what is the procuratorate, court, or the public security organ.

   In short, the criminal reconciliation system by introducing into the Chinese guidelines, in under the concept of harmonious society, in the judicial practice, but also in the research of the consensus in showing a scene, Chinese process of western theory, the benign interaction is of "theory - Practice - Theory -- Practice", shows the close combining the western legal system and the local resources of the Chinese. In this context, the criminal reconciliation procedure come very naturally, even must become as an important part of the criminal procedure law Chinese basic law.

   Provisions on the criminal reconciliation system in three, the new "criminal procedural law"

   From the generalized system of criminal reconciliation, 1979 "Criminal Procedure Law" the provisions, the law 127th, "the people's court in a case of private prosecution, mediation may be conducted; private prosecution before a judgment is pronounced, can arrange a settlement with the defendant or withdraw". In 1996, the 2012 edition of the criminal procedure law to follow this "precedent" -- the criminal reconciliation system that is slain upon Party reconciliation.

   But in the judicial practice and academic discussion, which were not taken seriously. Only in the background, the real from the idea, practice and burst out of the strong vitality. Therefore, the provisions in 2012 edition of "Criminal Procedure Law" is the real first in the code specification litigation system.

   A total of three articles, from 277 to 279, the analysis is as follows:

   First of all, is the application of the criminal reconciliation procedures, including the following contents: firstly, apply only to the case of public prosecution; secondly, if it is intentional crime, is suitable for the three years following the misdemeanor cases; and this kind of misdemeanor cases only by civil disputes caused by violating criminal law, Criminal Acts chapter fourth, chapter fifth.; third, if the criminal negligence, except the malfeasance crime is punishable crimes outside the prison the following 7 years; fourth, reverse restrictions: the short of criminal cases, if the criminal suspect, the defendant in the 5 years before the intentional crime are not applicable criminal reconciliation procedure.

   Based on the above: first, the new "criminal procedural law" on the discussion in the academic circles and judicial practice in the scope of applicability of the absorption including misdemeanor criminal negligence. Secondly, but the law did not explicitly included in the juvenile delinquency, crime of college students; if looking from another angle, it did not explicitly rejected, in other words, as long as in the scope of Syria and just can also apply. Furthermore, the new law did not involve practitioners, scholars concerned about students, juveniles criminal reconciliation, but with another kind of classification will be vague, through the subjective intention and negligence, cause the standard way of the extent of the consequences. Once again, the new "criminal procedural law" clearly the execution reconciliation practice excluded.

   To make a long story short, in the scope of application, the new "criminal procedural law" is a confirmation about the criminal reconciliation procedure academic discussion of consensus, the judicial practice of normal, but not innovation.

   Secondly, on the criminal reconciliation procedure start subject: the new "criminal procedural law" and does not specify who start the program, but according to the overall significance of 278th, 279, on the criminal reconciliation procedure and not as some scholars thought according to different cases or the relevant standards to adopt a different program, and the procedure start right endowed with different stages (a stage of investigation, prosecution and trial stages) of the judicial authority, the public security organs, procuratorate, court procedure start right.

   Again, on the criminal reconciliation program (Law 278th, 279), divided into three aspects: first, the program start, in the stage of investigation, the investigation organ start; in the prosecution stage for prosecutors to start, at the trial stage by the judge to start. Secondly, the settlement agreement: both parties (the suspect, the defendant, the victim or his legal representative, agent ad litem, close relatives, etc.) in the public security organs or the public prosecutor or the court under the auspices of the crime suspect, accused person with sincere repentance, compensation, apology, a way to reach a consensus. Thirdly, the public security organ to the prosecutor's lenient punishment suggestions to the court or procuratorate lenient punishment suggestions, or courts according to law the defendant lenient punishment, to finally end the criminal case.

   From the above explanation, at least can simply make the following analysis:

   First of all, from the achievement: on the one hand, the new "criminal procedural law" of the criminal reconciliation (system) program specification is a confirmation of the basic consensus for judicial practice and academic discussion or a consensus on the existing theory and practice, such as the misdemeanor cases, a loss of cases can enter into the scope of criminal reconciliation; of course, according to the new "criminal procedural law" about the death penalty cases, criminal reconciliation is basically excluded. On the other hand, it is not unprincipled to concern existing practice and social, academic content (such as juvenile crime and college students crime) completely confirmed, but the use of legislative techniques to neither deny nor further standardize, pending the future -- perhaps this problem in judicial practice and law theory discussion can a more mature and more socially acceptable to be further defined.

   In fact, this conclusion is the "theory - Practice - theory and practice --" relationship reflected again, furthermore, it reflects such a meaningful logic: because Chinese belongs to the developing countries, legal transplantation on Chinese, which belongs to the normal. But as everyone knows, Chinese existing on the western legal transplant system ineffective, thus the importance of theory and practice China local resources, but the effect was not obvious. But in the criminal reconciliation system, it has shown great resilience or western legal system and China local resources were closely, and this process: the main function is to guide the western theory, system, teachers, which first introduced, thinking theory, expansion and practice, theory, institutional scholars on the criminal reconciliation system advances a thinking, which could combine China practice make adaptation Chinese context, so as to guide the Chinese practice, makes the theory circle and the practice circle problems easier to reach a consensus, so as to promote the legislation.

   Secondly, from the observation of the lawsuit structure, the new "criminal procedural law" about the criminal reconciliation system has some defects:

   First, although the reality of judicial practice and law provisions, we implied law gives the public prosecution, procedure start right, but given the procedure start right important position, need further consideration: (1) according to the judicial practice, perhaps the criminal reconciliation procedure can run well before, but only in the criminal reconciliation procedure is not officially entered the criminal procedure law, which is still in the pilot and experimental and exploratory stage; (2) the Chinese judicial independence and not really established, judicial practice is also vulnerable to power erosion. Therefore, when the criminal reconciliation procedure has been into the law, should be based on the method of operation, clear the best to the legal provisions of norms, to a more clear and parties, to limit, regulate the investigation organ, the prosecutor and the judge to exercise the power function on the other hand also play.

   Secondly, on the assumption that has been determined by the new "criminal procedural law" by the public prosecutor, was responsible for the different stages of the criminal reconciliation procedure start right circumstances, should also to ask: the program is running, (1) how to participate in the situation of the parties, (2) the relationship between the parties involved and the judicial power, (3) according to the settlement agreement, suggested that the power or jurisdiction can range of discretion; for, further described as follows:

   From the legal provisions, the first question is fuzzy. Because although the reconciliation is performed on a voluntary basis, legal context, but no professional (is not only a legal person, also including psychologists, sociologists) help voluntary, lawful can hardly realize, because there is only one fully understands the need to self, and the existing basic situation in order to complete the the voluntary, legal problem of so-called, only in the legal professionals, psychologists, sociologists, help, suspect, defendant and criminal victims can make whether criminal reconciliation decision-making ability, and the voluntary, legal; otherwise, the criminal reconciliation so-called becomes the drill field of law of the jungle.

   The second problem, the new "criminal procedural law" is full of contradiction: on the one hand, from the formal point of view, the 278th is referred to the role of the public prosecutor, law, carry the host in the role of criminal reconciliation program. On the other hand, if only the role of words, is also specified in the provisions, "reconciliation, the public security organs, people's Procuratorate, the people's court shall listen to the opinions of the parties and other relevant personnel opinion......" Furthermore, the host; in the production of the mediation agreement is actually based on the parties and other relevant personnel views can be the case and solutions to bear responsibilities substantive judgment. This requires further improvement of legislation.

   The third problem, the new law does not mention. Although the intentional crime main specification of new "criminal procedural law" misdemeanor and may be sentenced to 7 years in prison for the negligence, but we can still find the public security organs, procuratorial organs and courts in the exercise of right of suggestion or decision right, still have enormous discretion. Because if you make a lighter punishment proposal or decision according to the settlement agreement only, perhaps on the specific parties are something to do, even to the court, procuratorate and the public security organ is also worth pushing things (because they solve disputes), but is likely to damage the public interests and the judicial authority.

   Four, as the conclusion: can continue to place

   Criminal reconciliation procedure into the law, is to have both a judicial practice temporarily concluded, is that constraints on future judicial practice and academic discussion of a specification or. The former is to account for the history, the latter is to guide. Therefore, this conclusion is in the future.

   In the author's opinion, can consider these factors:

   The first layer: criminal reconciliation system is a procedural problem. In this program, the public security organ, the procuratorate, the court can use the right to interpret the law will be the law of the fuzzy. But the trend is not in order to strengthen the authority or department -- take power and benefit, but for such a purpose, namely to just mentioned, can explain better balance the provisions, judicial authority, social benefit oriented.

   In fact, this also not forget another protagonist, lawyer. Lawyers can draw on their experience, and society more fully contact, more improve the legal skills in order to achieve better quality to the interpretation of the law (though not produced like has the power to interpret the effect) power, public security organs in the male, inspection and law "with", the law further refinement in judicial practice can produce more quality and efficiency.

   Second layer: these detailed rules although not part of the formal legal provisions, but can be formed through the accumulation of judicial practice. But only the formation of judicial practice is not enough, in the present context Chinese, i.e. not independent judicial situations easily eroded. If sustained attention law together ', which can have a much broader social impact, the (good) practices will be easily extended to other judicial organs.

   Third layer: equivalent change cause qualitative change, can achieve can complement, perfect the criminal reconciliation program in the future amendment of the criminal procedure law of the.

   If yes, the formation of "theory - Practice - theory and practice -- the relationship between" style, excellent also embodies the Western settlement system, the western legal system formed in the China logic.

   In a word, the legislation is not the end, just temporarily summary, is the start, legislative, judicial, law academic discussion interactive a start.