Core tip: to achieve the restoration of justice requires the criminal justice proceedings and criminal responsibility, not only based on retribution and prevention need to consider whether the punishment equilibrium, also should be based on the crime of disrupting the social relations can be restored effectively as the starting point and ultimate pursuit.

One, the origin of criminal reconciliation

The source of criminal reconciliation system in the western concept of restorative justice (also known as restorative justice, Compensatory Justice etc.). Restorative justice is a term first appeared in twentieth Century 70 years in Ontario province of Canada with destruction of art crime, a young probation officer to convince the judge to let the case of two defendants and victims meet, then the judge ordered the defendant to the victim's compensation for all losses as sentenced to probation conditions, has evolved into the victim -- "the criminal reconciliation plan" (VOR). After the other parts of Canada have also actively used in this way, in 1978 America Indiana elk Hart city for the first time the victim -- settlement crime into USA, thus this scheme is widely used in America and europe.

To achieve the restoration of justice requires the criminal justice proceedings and criminal responsibility, not only based on retribution and prevention need to consider whether the punishment equilibrium, also should be based on the crime of disrupting the social relations can be restored effectively as the starting point and ultimate pursuit. The traditional criminal justice is controlled mainly by the offender's personal freedom punishment measures to achieve the purpose of criminal punishment, which more or less to the victim, the offender and the social relations of damage. The victim will not only physical and mental have suffered damage on the criminal behavior, also because of the loss to no compensation and get into trouble; crime because of violations of their face jail time, but also can not guarantee the criminals after prison reform can sincerely regrets crime; social relationship will be because of crime. Damage is hard to repair. So it is considered to be a fair but harmful justice. Restorative justice considers the problem is not only let criminals get punished accordingly and make the victim, the offender, social relations can be repaired, reconstructs the victim, the offender, the balance between social three. For the offender, the victim and the social positive can be passed to repentance, active compensation methods to repair the relationship with the victim and society; for the victim, the offender may be through physical damage on the compensation for mental damage, repair to between the reconstruction and the perpetrators of the balance; for the society, understanding of the perpetrators of the victim and the offender people's repentance compensation for damaged social relations can be repaired, its essence is a kind of "harmless justice".

The criminal reconciliation system has many different interpretations from the day, some foreign scholars believed that, the criminal reconciliation is the offender reconciliation with the victim, is in after the crime, the mediator let the perpetrators and victims, direct talks to settle the dispute conflict, specialized state organs no longer prosecute perpetrators of criminal responsibility or mitigate criminal the liability of the suspect. Domestic experts and scholars believe that, the criminal reconciliation system refers to the crime occurred, presided over the negotiations by the specialized agencies to achieve the victims and the offenders, victims of the perpetrators of forgiveness through sincere repentance perpetrators and compensation for victims, according to the agreement between the parties, the national judicial authority not to pursue the perpetrators of criminal responsibility or mitigate criminal the liability of the suspect. But now the mainstream view is that: the criminal reconciliation is the mediator the victim and offender negotiate, and common economic compensation negotiated agreement, the judicial organs to litigation activities have to perpetrators of criminal liability disposal according to the actual situation, including the economic compensation for reconciliation and criminal liability disposal two procedures. ②

The criminal reconciliation contains humanitarian, tolerance, equality, show the criminal legal relationship between humanity, tolerance and compromise, to a certain extent, to avoid the side effects of penalty, fit to construct the harmonious society, the China safeguard social fairness and justice as the themes of our times.

　　In two, the foreign criminal reconciliation

So far the comprehensive provision of the criminal reconciliation system country is Germany, GermanyThe criminal lawSweden, GermanyCriminal Procedure LawCode provisions of the specific content of the criminal reconciliation system from different angles, a German criminal reconciliation system is only applicable to juvenile offenders, supplementary provisions of the revised 1998 "juvenile criminal law": juvenile offenders and victims mediation is the educational measures can be imposed; if have executive education punishment, prosecutors said no necessary by the juvenile punishment can be immune from prosecution, the judge may terminate the proceedings. According to the GermanThe criminal lawCode provision: if the offender to reach a settlement with the victims, the behavior of all or most of compensation, or efforts to compensate for their behavior, compensation for victims or fully or mostly implemented, can reduce or waive the penalty in accordance with the law. Specifically if possible penalty of not more than 1 years of freedom penalty or penalty of 360 units Ejin punishment, to waive the penalty: lifelong free punishment is replaced by the more than 3 years of free punishment; there is freedom punishment can be sentenced to the maximum penalty 3/4, minimum minimum free punishment were 10 years, 5 years or 3 years, 2 or 1 years, respectively, reduced to 2 years, 6 months, 3 months. Moreover "GermanyThe criminal lawApplication of Criminal Reconciliation: "did not charge limit, either intentional homicide or minor damage as long as the perpetrators and victims to reconciliation, the criminal reconciliation system can be applicable to. Treatment of the criminal reconciliation system is mainly used for the juvenile delinquency, by law enforcement officers called juvenile suspects and victims of equal consultation, if the offender to confess repent sincerely and get the victim's pardon, the two sides to reach a mediation agreement, then the law enforcement officer will no longer be appealed to the court for juvenile delinquents. And the criminal reconciliation cases Britain also constantly expanding, gradually applied to rape, robbery, kidnapping and other felony. In twentieth Century 90 of France in the emergence of a "universal reconciliation" movement, which aims at not in the social order seriously disrupt the situation, encouraging the parties reconciliation to ease the burden of the court. In January 4, 1993, the French parliament passed the "FranceCriminal Procedure LawCode "forty-first supplementary provisions:" the Republic prosecutor if mediation can guarantee the victim damage compensation, may terminate the disturbed due to crime, to help offenders return to society, before the prosecution decisions, and with the consent of all the parties agree, may decide to apply mediation." The provision that the French for criminal cases can mediate in the investigation stage, regardless of its committed any sin, as long as with the consent of the parties to compromise and immune from prosecution. In American has also launched "based on the contact" defense plans to actively contribute to the reconciliation between the parties; in the Australian judicial organs also specially interview as a way of dealing with serious crime; in Oman, the criminal reconciliation system can not only in the minor criminal case applicable, even in the murder crime is also approved on the victim and criminal related personal injury settlement agreement. ⑦

From the legislation and the judicial practice, the criminal reconciliation system has got great development in the 30 years, from the initial suitable for minor criminal cases and gradually extended to the severe cases, criminal reconciliation system has flexibility, social, and repair of the fuzziness of traditional judicial system the punishment of crime objective, eliminate the victim not make up the strong sense of frustration, guides the offender to actively start with a clean slate to pursue social tolerance, reflects the diversity of judicial punishment, saves the limited judicial resources.

　　Three, the status of criminal reconciliation in China

The criminal reconciliation system developed in the western countries, after entering China has achieved a certain degree of development, this product is based on the concept of restorative justice have been recognized, more and more local judicial organs in handling the case will it as a kind of processing method. For example: in the afternoon of August 19, 2006, Yang drove in the territory of Yangqu County of Taiyuan city highway, due to fatigue driving, the car scraped into the fence, after Yang left suddenly hit the steering wheel, causing the car to break the fence, causing the car's sister-in-law died on the spot. Identified by the traffic police to take full responsibility for the accident yang. Yangqu County Public Security Bureau to the crime of causing traffic casualties to the procuratorate for prosecution, procuratorate believes that the evidence is sufficient, the facts are clear, Yang sincere repentance and the families of the victims to reach a mediation agreement forgiven the families of the victims, procuratorate nonprosecution after Yang made the decision. Such as: the Hunan province Longhui County juvenile Luomou to vent their anger will be the victim Wang Mou seriously wounded, after the discovery of the procuratorial organs involved in the investigation, Luomou repentance attitude good, home is willing to compensation, then the Luo made a decision not to initiate a prosecution. The Taiyuan city flower Ling Qu Zhang as middle school students, the school with the knife Lee cut into seriously, after the prosecution involved in the investigation understands, Zhang during the period of school performance is duty, good grades, before the incident was three years older than him Lee repeatedly insulted, parents know that with Zhang to the Li Jia to denounce a view, Lee but Zhang parents acrimony, Zhang momentary anger will Lee stabbed. After the parties reach an agreement on the part of civil compensation, and make a decision not to prosecute the procuratorate...... The case is not only the application of the criminal settlement system It is often seen., some places even issued specialLaws and regulationsOn the application of the criminal settlement system principle, scope, conditions and provisions. As of 2005, the Shanghai high court, Shanghai City People's Procuratorate, Public Security Bureau of Shanghai city and Shanghai City Judicial Bureau jointly issued the "opinions on" light injury cases, the entrusted people's sense of mediation; in 2006, the Hunan Provincial People's Procuratorate issued the "provisions of Hunan Provincial People's Procuratorate on the inspection organs to the criminal reconciliation in handling criminal cases (Trial)"; 2007 September, Taiyuan City People's Procuratorate issued "provisions of criminal reconciliation applicable minor criminal cases (for Trial Implementation)". After that, many other places have introduced similar laws, regulations deal with similar cases the application of the criminal settlement system.

　　Four, the value of criminal reconciliation

Criminal reconciliation is the product of Western restoration justice, its purpose is to protect the interests of victims, and hope to build a kind of criminal victims, perpetrators and social three benefits both the protection mechanism. In order to carry out the requirements of the lenient and severe criminal policy, the construction of a harmonious socialist society, the controversial system also borrowed from abroad. In recent years many disputes on the theoretical circles and practical circles theory. Probably formed two factions struggle, namely, agree and disagree with their disputes. The author views tend to agree with the party, because the criminal reconciliation can make up for the shortage of the traditional criminal justice, play an important role in the improvement of the criminal justice system in china.

(a) the criminal reconciliation system is conducive to enhancing the status of victims

The traditional criminal neglect of criminal victims rights protection, object victim as a criminal violation, the body subjected to varying degrees of damage, and the traditional criminal suit to national prosecution principle is often overlooked as the subject of litigation should be involved in criminal lawsuit activity, in the litigation activities to express their victims will, to the court of the conviction and sentencing applied to his influence, but can not affect the action the most solid outcome, but a witness in court in the process of incidental civil action plaintiff. Procuratorial organs and the investigation organ in such criminal activities play a major role, and this kind of abuse victims' Rights Act will come very naturally is considered to be against the interests of the state and public interests behavior, the victim's personal rights have to let in the national pursuit to the public interests and social order. The victims in the criminal justice system abandoned in many cases, it is difficult to obtain sufficient equal participation chance of dialogue in the criminal procedure. 11 although the victim may compensate by incidental civil litigation request of the defendant, but in the judicial practice, the issue of compensation in incidental civil action has not resolved, the court judgment is often just a mere scrap of paper. According to statistics, in 2004 and in 2005 the first intermediate people's Court of Beijing city for the implementation rate of 13.4% and 6.4%. Such a low rate of implementation, serious damage to the fairness and authority of law, it is because of the victim's rights are not fully protected, resulting in the victim's petition, a series of problems occurred around v.. And the victim offender reconciliation system not only greatly improved the victim's legal status, which can be directly involved in the disputes, to fully express their wishes and demands of their own, giving the defendant the negotiation, both sides reached a conciliation agreement based on a voluntary equality, and fully guarantee the victim's rights and interests, protect the victim interest. And through the active compensation for the defendant, but also to a certain extent overcome the implementation of difficult issues in judicial practice.

(two) the criminal reconciliation in favor of harm to society

The traditional criminal justice by restricting freedom of the person of the crime criminal punishment, the offender for the victims of violations, the court convicted in prison execution. In Chinese such a cultural tradition of the country, former criminals tend to suffer social exclusion, crime not only oneself by others will look down, and even the family is also difficult to raise head life. The criminal reconciliation in the benefit principle, by the offender and victim offender reconciliation, through the face-to-face talk with the ability to recognize their own crimes to victims suffering. So sincere repentance and active compensation to make up for the loss caused by the offender, the relationship between re repair and victims. And to a settlement agreement reached between the and offender or not prosecuted or exempted from criminal punishment, so as to avoid the negative effect of the result of a criminal act, to help offenders return to society, to obtain social recognition. On the other hand, the prison is not necessarily make criminals shun evil and learn to do good, and some people even become aggravated crimes after release. Criminal reconciliation not only eliminates the negative effect of crime also let the offender to sincere repentance, to avoid invalid prison reform.

(three) the criminal reconciliation system helps to improve the efficiency of handling cases

Justice of the traditional criminal justice activities with particular attention to the procedure, efficiency and paying too much attention to the procedural problems often ignored the judicial activity, at present our country faced less case situation, how to improve the judicial efficiency has become a problem to be solved, and between efficiency and the program is contradictory, if too much emphasis on efficiency will be out of the program, if too much emphasis on the program will reduce the efficiency of. The traditional criminal justice activities through investigation, prosecution, trial process, intermediate relates to collect evidence, the burden of proof, cross examination debate, such as a series of procedural matters, the program itself is to guarantee the impartiality of judicial activities, but the premise is fair in order to reduce the cost of judicial efficiency. On the other hand, the traditional criminal justice activities greatly increased the cost of litigation, 12 staff of state public security organs need to spend a lot of time and energy for investigation, prosecution, trial, consume a lot of judicial resources, the parties need to hireLawyer, payLitigation costs, need to have sufficient time to participate in the litigation proof, cross examination debate, a series of activities, not only consumes time and energy to the parties also increased the economic burden of the parties. But litigation is more or less spiritual loss caused by the parties, the parties may also caused second injuries. The criminal reconciliation system is to some extent and the contradiction between justice and efficiency, saving the cost of litigation. The criminal reconciliation process, does not need the public security organ for investigation, prosecution, trial and other activities, but only as an intermediary to ensure the validity and authenticity of the criminal settlement agreement. Both parties also need not employLawyer, payLitigation costs, also do not need identification, evidence, cross examination and a series of complicated program activities. This not only reduced the national judicial resources consumption, so that the judicial resources reasonable allocation, also save the parties to litigation costs, greatly improve the efficiency of litigation.

(four) the criminal reconciliation system provides a new idea for the application of China's restrictions on the death penalty

At present, the abolition of the death penalty is represent the general trend, but from the current situation of our country to see the abolition of the death penalty is still not mature conditions. Although the legal profession have doubts about the death penalty, but the current practice of the abolition of the death penalty system in China's legal profession cry, really difficult to explore the practice and the abolition of the death penalty, but the victim offender reconciliation system gives us a new choice, can be said to be a progress in exploring the abolition of the death penalty system, but also to reduce the reasonable selection of the death penalty, death penalty in the process with specific cases. In death penalty cases, if the offender to actively compensate, sincere repentance and made the victim of understanding can reduce corresponding punishment. Because the social harmfulness of crime direct performance for the offender to the victim, if the victim can forgive the offender's behavior, in fact it is equivalent to the offender by the victim's understanding of social danger to reduce its crime. But in the process of reconciliation, the defendant's sincere repentance and active compensation, the subjective of crime that the defendant's confession, personal dangerousness is also reduced. On the other hand, the criminal reconciliation caused serious damage and impact on social psychology and social order. Criminal reconciliation to the defendant to the victim apologize sincerely repent, victim understanding the defendant, the defendant and rebirth, ease the contradiction between the victim and the defendant, which is conducive to social relations and social psychology to repair 13. But for the social harmfulness, the means of crime against the state and public interests as well as extremely bad social order the collective interest of malignant cases death penalty does not apply mediation, because these cases of infringement of personal rights but not collective interests, the consequence is extremely bad, if not sentenced to death will not only reduce theThe criminal lawPrevention function will also cause the "buy life" misunderstanding to the general public.

(five) of the criminal reconciliation has certain social value

The criminal cases are often caused by physical, mental injuries to the victims and their families, easy to cause the defendants and victims and their families of hostility, induced revenge based occur again crime is not impossible. At the same time, the offender is not punishment or victims can not get the corresponding compensation based on the victims and their relatives, often caused dissatisfaction, causing them to petition, wrap v. even attack state organs, which seriously affect the social order. The criminal reconciliation system is to repair the old social relations, to balance the old society, the victim will because the sincere repentance and active compensation for the spiritual substance on the comfort, the offender because of its sincere repentance active compensation and commutation or exemption from criminal penalties, will also get social recognition. For the perpetrators and the victim, criminal reconciliation system is a win-win situation. For society, the two crime due to criminal cases will be greatly reduced, there is conducive to the stability of social order. On the other hand, criminal reconciliation is also in accordance with the construction of harmonious socialist society in China at present advocate claim. The criminal reconciliation in order to restore the social relationship damaged for the purpose, starting with the solution of the parties to the dispute, in order to protect the victim's interests as the core, in order to protect the public interest of the people and save the crime as the purpose, value balance to the victim, the offender and the social public interests, so as to realize the harmonious development of the whole society.

It is because of the superiority of criminal reconciliation such as bamboo shoots after a spring rain, let the criminal reconciliation in China blossom everywhere, it also reflects a new theory recognized degree, reveal the criminal reconciliation in resolving conflicts in the value, show diversified dispute resolving mechanism, has the vital significance to the construction of harmonious justice. On the other hand, we must also pay attention to the voice of the opposition:

(a) the criminal reconciliation system is not in line with the principle of legality

Requirements of the principle of legality, criminals who committed the crime and the penalty must be consistent. Not because of illegal and criminal by reducing under punishment, criminal reconciliation system not only makes the law of justice theory cannot fully applicable, but also make the traditional cold suiting punishment to crime judicial system in mutual understanding mutual compromise when people face to face communication mediation.

(two) the criminal reconciliation system shakenCriminal Procedure LawFoundation

The traditionalCriminal Procedure LawBased on the national prosecution, the unity state offences and punishment of offenders to exercise, opposites will state public prosecution mechanism and the defendant in the complete status, request the court as a neutral referee, to maintain justice and fair play in both sides, emphasis on judicial mode in judicial philosophy, adhere to the requirements of procedural justice, no person shall be a judge in his own case, the judge will hear both sides but the statement of the people at the same time, the formation process of any judgment should ensure that the litigant's equal participation in peace and other armed. 14 the traditional criminal justice aims to ensure equal confrontation between the prosecution and the defendant status in criminal procedure, so the principle of presumption of innocence and derive, should not be forced to testify against himself principles, rules of evidence and a series of rules is required in order to achieve this purpose procedure justice, however the emergence of the criminal settlement system, broke the pattern of criminal judicial tradition, judicial organs according to the settlement agreement between the parties and ends in the judicial activities at any time, this leads to the principle of presumption of innocence, litigation procedure rules a series of rules of evidence, do not use, so a direct impact on the foundation of traditional judicial system.

(three) the criminal reconciliation system reduces the penalty's deterrent effect, realizing judicial justice

Primary function of punishment to the powerful deterrent, if in any case the applicable criminal reconciliation system, so people will not because of fear of crime by the criminal punishment and the crime, the judicial organ to accept the settlement agreement and the offender a lighter or mitigated sentence shows the deterrence of penalty reduction. Not only that, the rich can compensation in exchange for commutation or pardon, the poor can only be heard by the court. Even the two principal in the same case, because of a sincere confession money compensation and commutation, another because no money compensation while in jail, therefore, we have to consider Fairness Issues of this system; on the other hand, the judicial staff accepting and contributed to the criminal reconciliation enjoys considerable discretion the criminal reconciliation, they favor can make the person produces the "rich people can successfully escaping from punishment" impression, a national criminal punishment "marketization" confusion, affect the realization of judicial justice. 15

The author thinks, any theory can be accompanied by sound of doubt, also the theory can only stand the test is called the truth. Moreover, the criminal reconciliation system not only has the humanitarian spirit is also in line with theThe criminal lawThe modesty principle 16, and has been in our country has made great development, in theoretical research and practical application are increasingly mature. Although difficult to avoid, but we are not in the application of the criminal reconciliation system is unable to agree on which is right, but too much emphasis is placed on the traditional judicature pattern value, while ignoring the intrinsic value of criminal reconciliation. Leading to the criminal reconciliation disputes frequently. Therefore, we must comprehensive multi angle view of this new system, as soon as possible the Nativization of the ship to come. As the Supreme People's court vice president Liu Jiachen said at the 2006 July meeting of "criminal reconciliation" in the context of a Harmonious Society Symposium on it: criminal reconciliation is a system and judicial mode, it is a judicial philosophy, theory and practice in the existing legal system frame under continuously enrich the criminal reconciliation system, thus making contributions to the construction of the judicial system reform, the harmonious society. 17

Five, criminal reconciliation applicable scope

At present, China's criminal reconciliation is mainly used in a case of private prosecution, the neighborhood disputes, contradictions, and family disputes and other violations of individual rights of the minor criminal cases. This kind of case because of violations of the rights of the individual, and the facts of the case are clear, the two sides can reach a voluntary agreement of mediation, so the public prosecutor, judicial organs in dealing with such cases are not charged or mitigated punishment, so that improve the case handling efficiency, and can let the victim offender sincerely repent, effectively compensation, make the trial effect and social effect to achieve the unification. But for severe cases Is it right? Applicable criminal reconciliation system?

In fact, in May 6, 2006, a court in Guangdong Dongguan Hu, Li, Ding, robbing Deng a fatal case, the court considering the actual situation of victims and perpetrators of family sincere repentance, he presided over the mediation, the mediation agreement reached after, the 3 defendants compensation to the plaintiff to mother 50000 yuan, the court of principal criminal sentenced to death with reprieve. 18 2008 year in November 24th Henan to court the defendant Meng Wei love no kill his girlfriend a trial, after the defendant pleaded guilty attitude is good, willing to compensation, the court under the auspices of, reach a mediation by the defendant to compensate the plaintiff, the court of the original defendant sentenced to death with reprieve...... 19 the defendant active compensation for the sincere repentance remission cases in judicial practice is also frequently occur. In fact, as early as in 2006 November, the Supreme People's court fifth criminal cases work conference pointed out: "for marriage and family, neighborhood disputes and other civil conflicts triggered by the case, caused by the fault of the victim's case, the sincere repentance and active compensation for the victim's loss cases, should be used with caution in the immediate execution of death penalty". 20 at the same time, the Supreme People's court in the "on the further play mediation is also proposed in a number of opinions" constructs the socialism harmonious society the positive role, for minor criminal cases can try to promote reconciliation of the litigants, and explore various closed way contribute to the construction of a harmonious society. Also in the case of intentional homicide in criminal reconciliation has an important value, this is because such cases are often violated citizen's right to life, easily lead to hostility and confrontation between the defendant and the victim, and because of the death of the victim to the families of the victims of trauma also need economic compensation, compensation to appease the victim trauma if the defendant can be very good to ease the conflicts, the families of the victims and the accused in a certain extent, to reach an understanding, so as to effectively resolve social contradictions. From the judicial practice in local we also saw the show of criminal reconciliation system in felony cases vitality.

The author thinks that: at present, the criminal reconciliation applicable in minor criminal cases has been the undisputed. Felony cases because of the serious crimes, serious damage to the interests of society and social relations, so most people hold a conservative attitude. Of course, simply agree or disagree with is not desirable, we must see the intrinsic value of criminal reconciliation, therefore, can according to the circumstances of the case the scope of application of criminal reconciliation to distinguish.

1, to distinguish the nature of the case. Due to the marriage between family, neighborhood disputes, relatives and friends excited by civil conflict cases can be applicable criminal reconciliation system. This kind of case because of infringement is a specific object, not a significant impact on social security, public order. To against the collective interests, social public interests, such as the crime of endangering public safety, crime of the underworld organization and other unspecified persons case, because of a serious violation of the social order, a sense of security for the masses of the people has caused a major impact, the damaged social relations will not be fixed because the criminal reconciliation.

2, to distinguish between the types of cases. Criminal reconciliation is only applicable to the infringement of personal rights infringement cases has a specific object, the criminal reconciliation's purpose is to enhance the status of victims, protect the victim's interests, soothe the spirit, if in specific cases the victim vacancy, then it is impossible to protect the victim through settlement purposes.

3, distinguish the circumstances of the case. The criminal case was particularly bad, particularly cruel means, caused serious consequences to the society of case not applicable criminal reconciliation.

4, to distinguish between the subject of crime. For a first offense, crime, I can actively compensate the victim's family forgive sincere apology made applicable for recidivist, crime, after repeated, no apology is not applicable. This requires the judge handling the case must be fully aware of the case, and actively guide to meet the conditions of criminal reconciliation case, does not meet the conditions of criminal reconciliation cases decisive decision. Give full play to the value of criminal reconciliation, ensure the case of uniform social effects and legal effects processing.

　　The applicability of six, criminal reconciliation

(a) the case facts are clear, the evidence is sufficient

Must have clear evidence that the perpetrators of the act is a crime, also must have clear evidence that the perpetrators of the act to cause damage to the victim. Only based on clear facts not dispute, mediation organization to have a clear understanding of mediation proceedings, focus to host parties on the case of consultations; only based on clear facts not dispute, both partiesTalentCan have a reasonable understanding of the scope of compensation and the amount of compensation, it may well reach a mediation agreement.

(two) the defendant pleaded guilty repentance, positive, willing to compensation

The offender must recognize their own behavior is a crime, you must recognize this crime victims and their relatives to

Harm and social. Must be willing to accept the punishment, responsibility, self through sincere apologies and penitence behavior to reduce crime victims suffering. On the other hand, the offender must also give the proper compensation, because the crime perpetrators of more or less to the victims and their relatives caused damage, the offender must through the compensation to make up for the loss of the victim. Only by the perpetrators of the positive confession compensation, the victimTalentCould communicate with the offender, criminal reconciliation procedure can be started, can the relationship between perpetrators and victims to repair.

(three) victim understanding, willing to reach a mediation agreement and offender

Victim forgiveness is refers to the perpetrator of tort victims victim's pardon. Victim forgiveness tort that through sincere repentance and the active compensation to victims, unwilling to hold perpetrators of self inflicted damage, tort to re-examine the offender, is not willing to accept punishment or mitigated punishment on the behavior of the perpetrators of the court. Only the victim's forgiveness, to achieve its purpose of criminal reconciliation system.

The author thinks, the criminal reconciliation should meet the above requirements, the case facts are clear, the evidence is sufficient both partiesTalentWithout dispute, the defendant pleaded guilty to repentance, willing to compensation to show the defendant repentance sincerity, social danger victim understanding can to some extent reduce the crime, only with the above conditions the judges can judge according to the criminal reconciliation system. At the same time, the judge should reasonable use their discretion, in accordance with the requirements of the criminal reconciliation, to actively guide the parties reached a settlement agreement; for the less controversial, the applicable criminal reconciliation system basically clear case facts can be selectively. Not conforming to the criminal reconciliation to see cases, the judge must adjudicate according to law.

　　Seven, applicable principle of criminal reconciliation

At present, our law does not stipulate the criminal reconciliation system, but the author thinks, the criminal reconciliation as a

The new judicial system, in practice must be cautious, we should adhere to the following principles:

(a) the voluntary principle

The voluntary principle is refers to the criminal case both parties voluntarily participate in the criminal reconciliation procedure, the voluntary acceptance of the settlement agreement through reconciliation procedures, and according to the rights and obligations of a voluntary settlement agreement. The voluntary shall include the following contents: 1, volunteered to participate in the mediation procedure. The criminal reconciliation should fully respect the views of the parties, and initiated and applicable must be based on both parties voluntarily; 2, voluntary mediation agreement is reached, and the content of the mediation agreement must be the true meaning of the parties. If one of the parties is not voluntary but by agreement of the other party or third party fraud stress is reached, because the true meaning of the parties and not the settlement agreement. The perpetrators, although its guilty but not sincere repentance, and not its social harm reduction, and can not achieve the purpose of criminal reconciliation. The victim, because there was no sincere forgive the offender may also lead to criminal reconciliation fail; 3, the amount of compensation for the voluntary acceptance, no objection to the amount of compensation; 4, the voluntary agreement. The reconciliation agreement, the offender must be in accordance with the agreement to fulfill their obligations, for failure to perform or fulfill the settlement agreement the parties shall restore the judicial procedure.

(two) the principle of fairness

The principle of fairness is refers to the perpetrator of the amount of compensation, should be with the losses and the criminal responsibility of the consistent. That is to say the specific amount of compensation shall be consistent with the actual loss caused by the offender should bear the legal responsibility, consistent with the offender, consistent with the perpetrators compensation ability. 21 criminal reconciliation should follow the "three consensus" principle of mediation in a lawful and reasonable, so as to ensure that the legitimate rights and interests of the victim protection of the law, reasonable compensation for the offender can be mitigated punishment, resolving conflicts in a fair justice conditions, the relationship between repair of ruptured.

(three) the principle of legality

The principle of legality is refers to the criminal reconciliation must comply withThe criminal lawThe basic principles, not inconsistent with.The criminal lawBasic principle

Including the principle of legality, the principle of equality before the law, the principle of suiting punishment to crime. This a series of principlesThe criminal lawThe foundation, is the basic theory of punishment. The criminal reconciliation system must be inThe criminal lawSuitable basic principle. If it violates the principle of legality is lostThe criminal lawThe abuse of human rights value security and it may lead to criminal jurisdiction; if the violation of the principle of equality before the law, the criminal reconciliation is not fair; if the violation of the principle of suiting punishment to crime, criminal reconciliation has no legitimacy. Therefore, the criminal reconciliation must be applied in the framework of the basic principle of criminal law, in order to ensure its legitimacy.

　Application of phase eight, criminal reconciliation

At present the application stage of criminal reconciliation mainly has three viewpoints: the first kind of view: only the procuratorial organ to apply the criminal reconciliation procedure; the second view is that the public prosecutor, law three organs can be applicable criminal reconciliation procedure; the third view should be composed of a neutral third party of criminal reconciliation. The author thinks, the first kind of arguments, the case after investigation by the public security organ, the basic facts are clear, the parties are willing to mediate the attitude is basically clear, the public security organ may upon application of the party concerned to act as a mediator sponsored mediation, thus avoiding the case to prosecutors in the procuratorate repeated review this link, save litigation resources, improve the efficiency of handling cases. For the second kinds of views and third views the author thinks is feasible.

(a) for the public prosecutor, judicial organs for criminal reconciliation

The criminal reconciliation system has strong flexibility, can be used at any stage. In the stage of investigation, the public security organ according to the basic situation of the case of selective are applicable, for minor criminal cases, if the offender and the victim sincere repentance active compensation for understanding, the public security organ may make no file or withdraw a case decision, if severe cases and conforms to the criminal reconciliation, reconciliation agreement can be reached by public security organs submitted to the procuratorate, the procuratorate in the prosecution and trial to consider to the judge in the case are given, which can be used as the basis for a mitigated punishment. In the stage of review and prosecution, for minor criminal cases, the case facts are clear inspection organ, and the perpetrators and victims of criminal reconciliation agreement can be reached, also can make the decision not to initiate a prosecution, the severe cases can be reconciliation protocol by judicial organs, to reduce the punishment in the conviction and sentencing by the court with the mediation agreement. In the court trial stage, after the judge's interpretation reasonable, mutual understanding between the original defendant can reach an agreement, the judge can be exempted from punishment for minor criminal cases, severe cases for discretionary mitigated punishment.

(two) set up a special mediation institution of criminal reconciliation

Application of the criminal reconciliation system is not only the public prosecutor, the legislature can selectively, countries can also set up specialized agencies responsible for the criminal reconciliation of the criminal reconciliation in line with the conditions of the case, can the people'sJurorGrassroots people's mediation organizations or members served as a mediator, at any stage of the admissibility of the case, the judge, the prosecutor, the parties and their agent has the right to put the criminal reconciliation to criminal and demodulation mechanism. The mediator must first according to the nature of the case to case selection. The mediator must fully solicit the views of the parties in the brush case, ask the parties are willing to compromise, but also must take into account the nature of the case, the nature of the worst case is not applicable, means cruel criminal reconciliation, for both parties disputed the offender is not willing to plead the case of compensation are not applicable criminal reconciliation. Consideration must also be given to the victim's attitude, if the victim is not willing to criminal reconciliation with the consent of the offender, criminal reconciliation is not start. For after screening with criminal reconciliation cases, mediators can individual interviews were conducted with the offender and the victim, inform the relevant procedures, their reconciliation understanding of both parties and demodulation condition, in the legal and reasonable basis to create a reconciliation. America criminal reconciliation Association "recommended" moral standards have detailed provisions: (1) for the perpetrators and victims to explain the notes, to ensure that the settlement of personal and psychological safety; (2) expressed emotion encouragement and listen to both sides; (3) provide information about the system of criminal reconciliation, reconciliation, the criminal process the judicial system itself can be mediator and judicial resource information; (4) discuss the criminal reconciliation on the possible adverse effects or free existence and the parties, help make participated in the reconciliation, launch a variety of criminal reconciliation decisions in any case. 22 in addition, the mediator needs caused by loss of crime in a reasonable calculation, an accurate prediction of the possibility to reach an agreement, on the basis of this host both sides was talking face to face, the victim may cause their expression of crime of amount of compensation for losses, requirements, the offender may make a good faith apologize to the victim and damages, both sides reached a written agreement on. Mediators can be a mediation agreement report to the judicial personnel at stages of the proceedings, in order to make the exemption from punishment or mitigated punishment decision for the offender. In addition, the parties agreed in the agreement, the mediator will still need to supervise the execution of the agreement, inspection, performance of the perpetrators of the urge.

　　Nine, strengthen the supervision of the criminal reconciliation

The criminal reconciliation's smooth implementation, must be to strengthen the supervision of the premise. The criminal reconciliation system in China is still in the testing stage, we also tasted the sweetness of the criminal reconciliation, but more need to cause our attention is, not perfect criminal reconciliation system on the basis of the theory and practical experience, the criminal reconciliation procedure, provisions and the relevant application problems are not law, may lead to the abuse of criminal reconciliation, chaos to use, and indulge in the discretion of the judge, easy to breed corruption. So it is very important to strengthen the supervision mechanism of criminal reconciliation to establish and improve the supervision of criminal reconciliation. Procuratorate is the supervision organ of our country can not shirk its responsible for supervising the implementation of the criminal reconciliation system of responsibility, of course can also set up special organization to supervise, abuse, mess with the criminal reconciliation system, strictly investigate its legal liability, strict legal bottom line, to guide the healthy development of the criminal reconciliation system.

　　Ten, the criminal reconciliation still need legislation

China's current criminal reconciliation system has achieved a certain degree of development, in some places has also issued a criminal reconciliation system and regulations, but the theory is applicable terms of criminal reconciliation system, and also Public opinions are divergent. Although the currentThe criminal lawProvisions of the private prosecution and criminal incidental civil cases can be reconciled, but cases of private prosecution is in no case of mediator by both parties to reach a mediation agreement and the content of the mediation agreement and the implementation situation cannot be effectively guaranteed. In the criminal supplementary civil action in although judges can function as a mediator role of mediation, but low efficiency, low cost and difficult to implement the compensation situation of existence, which is difficult to achieve the purpose of reconciliation. At the same time, also led to the narrow scope of reconciliation, in most cases not applicable. But the criminal reconciliation as a new judicial idea to enter China's late time, people know little about the theory of the, unable to agree on which is right, causing the development of criminal reconciliation bottlenecks. But, we must see, benefits of the criminal reconciliation system in protecting the victim's interests, resolve disputes, restore damaged social relations, it is the traditional criminal justice system "harmful justice" to "the only way which must be passed of harmless justice. Therefore, the state legislature must make correspondingLaws and regulationsCriminal reconciliation, will set up a new legal principles and formulate corresponding measures, and strengthen the theory study, advancing in exploration, reform in advance, perfect in the reform, providing a solid theoretical support for the new system, so as to give full play to the role of the criminal reconciliation system, guarantee for the balance of the society harmonious development.

Reference.

[1] to the sun, Ma Jinghua: "build" value structure of criminal reconciliation and China mode, "China law" in 2003 sixth.

[2] Li Fenfei, "reconciliation" Chinese type "construction", "China prosecutors" in 2006 fifth.

[3] Jia Yu, "the death penalty study", Law Press 2006 edition.

[4] Greene, "of" criminal reconciliation, China people's public security press 2008 edition.

[5] Liu Lingmei, "western criminal reconciliation theory and practice of modern law", 2001 edition.

[6] Sun Wenhong, "from the perspective of criminal policy concept of justice", China procuratorial press 2006 edition.

[7] Ma Kechang, "comparison of punishment principle of foreignThe criminal lawTo learn ", Wuhan University press, 2002 edition.

[8] the money front, "dual structure" harmonious justice, Law Press, 2010 edition.

[9] [US] Howard Zeh, "restorative justice", Zhang Qi.

[10] Chen Jingchun, "" the death penalty for reconciliation and the death penalty, "the people's justice" in 2008 fifth.

[11] real national security: "Criminal Procedure Law" to protect the victim, Cambridge University Press 2007.

[12] Liu Jinlin: "Restorative Justice: theory exploration, careful implementation", "the daily" June 16, 2006.

① [beauty] Posey glory, "the gate to the law", the Chinese Press 2002 edition.

The above point of view. See Synonyms at Liao Yiping, "try to create the criminal reconciliation system I see", Chinese court.

To see Xu Jiusheng, Zhuang Jinghua "GermanyThe criminal law"Code" in the Federal Republic of Germany juvenile court "article tenth, article forty-fifth, the provisions of Article 47, China legal press, 2000 edition.

To see Xu Jiusheng, Zhuang Jinghua "GermanyThe criminal lawCode "forty-sixth a, the first paragraph of Article 49 to the specified Chinese legal press, 2000 edition.

(Law). See Kaston Stefani, "the FrenchCriminal Procedure LawThe essence of ", translated by Luo Jiezhen, China University of Political Science and Law press, 1999 edition, page 504th to 505.

To see (Law) Kaston Stefani, "FranceCriminal Procedure LawThe essence of ", translated by Luo Jiezhen, China University of Political Science and Law press, 1999 edition.

⑦ quoted from Greene: "research" criminal reconciliation, Chinese People's Public Security University press, 2008, pp. 256-257.

The transfer from Shanxi news network reported on November 22, 2007.

The transfer from Sanxiang City News reported on November 22, 2006.

The transfer from Shanxi daily, reported in September 2, 2007.

11 see Chen Ruihua, "the private cooperation model in criminal proceedings, the criminal reconciliation in the China rise" page twenty-sixth.

12 the cost of litigation and litigation consumption refers to the subject of litigation for action and consumption of resources, including bear to win the case for the public security authorities of the state financial expenditure and litigants consumption.

13 see Liu Yuan, Liu Jianjun "standard of death penalty of" from "law" in 2010 eleventh.

14 see Chen Ruihua, the theory of procedural justice, "visible justice", China legal Press 2000 edition.

15 see Liu Jinlin: "Restorative Justice: theory, implementation of" prudent, load check journal in June 16, 2006.

16The criminal lawThe modest means: existing legislation is not only in the specifications are essential method can substitute other appropriate penalties conditions, to certain violations of the legal order is set to the crime.

17 the Supreme People's court vice president Liu Jiachen in 2006 July held in Renmin University of China, "criminal reconciliation" in the context of a Harmonious Society Symposium on speech.

18 "Dongguan murderer loss mitigation, the court said he kill carefully" carrier "principle, the Southern Metropolis Daily", May 25, 2007.

"Zhengzhou daily" reported in October 27, 2009 19.

20 Zhu Wenchao, "death penalty cases and actively guide the criminal reconciliation and its constraints", "frontier" in 2008 to observe the trial load second series, Shanghai people's publishing house, 2008 edition.

21 Feng Nianxue, "the criminal reconciliation should follow the principle of".

22 (US) recommended ethical guidelines America criminal reconciliation Association homepage [EB/OL].[2002-05-10].http//www.voma.org/. quoted from Ma Jinghua, Luo Ning "on western criminal system".

(the writerChen YaningUnit: Chongqing Changshou District People's court)Http://www.dffy.com/faxuejieti/xs/201204/28323.html