Perfect legislation and judicial practice of criminal reconciliation

[The Lord Questions The word]:The criminal reconciliationLegislative PerfectionThe system design

[Abstract]:Criminal reconciliation as a new judicial idea, this paper is the theory of the criminal settlement and the problems in the judicial practice are briefly stated, and the criminal reconciliation system design, criminal settlement as soon as possible, in order to legal system, improve our criminal justice system.

The criminal reconciliation system is criminal law Western initiative, started from 70's of last century. Criminal reconciliation system is a new concept of justice in the field of criminal law in China, is in the "harmonious society" under the background of the times gradually attracted people's attention, and actively explore the theoretical circles caused heated discussion and judicial circle, practice to "criminal reconciliation" is It is often seen.

The concept and origin, the criminal reconciliation

Criminal reconciliation, also known as the perpetrators and victims of reconciliation, refers to the process in criminal proceedings, the criminal suspect (the offender) can actively to the victim confessed, apologize, and willing to pay economic compensation to the victim, in the victim understanding, in the specialized state organ or professional legal persons under the auspices of reconciliation, the agreement with the victim, specialized state organs will no longer be held criminally responsible, or give a method of case handling the lighter punishment. Its maximum value is the damage, restore the damaged social relationship between the offender and the offender repent and start anew, to return to the society.

In our country, the criminal and the solutions to the source in the ancient Confucian school "heaven of natural philosophy", on one hand, the harmony between man and nature, on the other hand, emphasizing the social relations of harmony, avoid conflict, dispute; in the feudal era, on the one hand the serious harm to the ruling order crime implemented severe law, on the other on the one hand, civil mediation and litigation settlement paid much attention to some of the disputes between private parties, most of the village or clan harmonic solution; today, the party and the country's emphasis on people-centered, building a socialist harmonious society, the criminal justice policy, is implements the lenient and severe criminal policy. Theoretical research and judicial practice, the criminal reconciliation found according to the.

Judicial confusion and perfection of legislation of two, criminal reconciliation

Criminal reconciliation is not in the criminal laws expressly. The results of the criminal reconciliation is not subject to criminal liabilities or dealt with leniently. In the specific application of the criminal reconciliation in this system, there are many confused.

Perplexity one:Is in violation of the statutory crimes and crimes to the principle of. The provisions of the criminal law: the law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly provided for the crime, shall not be convicted or punished; the degree of punishment shall be with crime, criminal responsibility and commitment to adapt. Therefore, whether to be investigated for criminal responsibility in the criminal suspect, shall be investigated for criminal responsibility should be to meet the legal requirements of the conditions as the basis, rather than on the victim and criminal suspects on the basis of whether to reach a settlement, "the statutory conditions and" can not make the case or the decision not to initiate a prosecution.

Perplexity two:Is a violation of the people's court trial functions. According to the law, the criminal cases, as long as they comply with the conditions of prosecution, shall be transferred to the people's court trial, the court to determine whether the suspect is guilty and sentenced to a criminal punishment. The criminal reconciliation, a lot of minor criminal cases are often part of the prosecution to withdraw or not to prosecute and closed, to expand the prosecution's own powers, to circumvent the court authority, the provisions are incompatible with existing laws.

Perplexity three:Whether judicial injustice caused by new judicial corruption. On the one hand, the criminal reconciliation cause before the law is not equal, not equal application of the law, the criminal reconciliation can not be investigated for criminal responsibility or lighter punishment of criminal suspects, this will make some rich and powerful people more light on the illegal crime, once the illegal crime, privately with the victim to reach a settlement agreement and avoid legal punishment, buy the punishment to the money; on the other hand, provides more space to the certain law enforcement personnel, they can "reconciliation" on the grounds, not to prosecute some of the prosecution of criminal cases, increases the risk of judicial corruption.

Perplexity four:Application of criminal reconciliation and who chaired the reconciliation. That the criminal reconciliation in which phase who presided over the settlement of the problem. In the choice of which stage of the proceedings and who will chair the reconciliation problem, theorists and practitioners have different understanding and view, controversial. The first kind of viewpoint thinks, the criminal reconciliation in the prosecution by the prosecutor to preside over the most appropriate; the second view, criminal reconciliation in the investigation, prosecution, trial, each stage of the proceedings can be, can be respectively by the police, prosecutors and judges to preside over; the third view, criminal reconciliation for trial judges presided over the more appropriate; the fourth view, should be neutral mediation mechanism is independent of the judicial organ to host more appropriate than.

The author thinks, the criminal reconciliation to the judicial organ to confirm the results, by independent neutral mediation organization to judicial organs outside the host, which belongs to the nature of civil mediation, but not the real criminal reconciliation; by the prosecutor to host, one is the human energy is limited, the two will inevitably be as both athletes and coaches when questioned, obviously inappropriate. To reduce v.tired, improve work efficiency, saving judicial cost point of view, the criminal reconciliation in the investigation, prosecution, trial of each stage of the proceedings can be performed by each stage of the proceedings, and the investigators to conduct is the appropriate choice.

In view of many confused the criminal reconciliation in the judicial process, the implementation of the criminal reconciliation in modern judicature has become an inevitable trend, so it is necessary to confirm and perfect from legislation.

First of all, the criminal reconciliation should be regarded as a basic principle in criminal lawsuit to be established.The provisions in the criminal procedure law principles: criminal suspects, defendants and victims and their close relatives to reach a settlement, the people's court, the people's procuratorates and the public security organs shall consider reconciliation will of the parties, according to the circumstances of the case in accordance with the law and not subject to criminal liability, or be exempted from punishment to the crime suspect, accused person lighter, mitigated or.

Secondly, , expand the discretion of the procuratorial organs, clearly defined procuratorial sentencing proposal right.In criminal reconciliation, the victim and suspect reconciliation, active request in writing not be investigated for criminal responsibility of perpetrators of cases, can make a non prosecution decision. Due to the specific standard of discretional non prosecution in the criminal law, the relevant provisions of the criminal law needs supporting modified to further improve, the author thinks that also can consider amending the criminal law, will apply the discretion not to prosecute the case could be sentenced to a term limited to 1Years in prison. If the circumstances are relatively minor criminal cases. At the same time, the establishment of the system of deferred prosecution, to not serious, may be sentenced to 3Years in prison cases shall be deferred prosecution. The power of sentencing suggestion is a part of public prosecution right. Sentencing procuratorial organ is often not in practice, because the law does not expressly provided, judicial organs are not fully considered. The criminal reconciliation cases, if the prosecution of the perpetrators and victims in the stage of examination to reach a settlement agreement, and has the actual performance, procuratorial organs should put a lighter, mitigated punishment sentencing suggestion in the public prosecution, judicial organs should be fully taken into account, otherwise it can not achieve the expected results.

Third, the criminal reconciliation cases included in the ordinary criminal cases simplified trial or for summary trial range.The author thinks, to reach a settlement agreement, and has been performed, the confession of the defendant's case, can be applied to the cases that the defendant pleads guilty to simplify the proceedings or the simple procedure, the perpetrators of criminal reconciliation agreement as to legal lighter, mitigated punishment or be exempted from punishment plot, given full consideration in the measurement of penalty.

Fourth, clear legal responsibility of breach will compromise and reconciliation regret.Reconciliation is the premise of the voluntary. In order to curb the offender to "buy punishment" bad motives to produce, prevent the offender through improper means, forcing the victim "voluntary" reconciliation, and reconciliation document, the offender does not perform or do not completely fulfill the settlement agreement, clearly defined in the law, the offender if such acts, shall be given a heavier punishment. At the same time, a necessary condition for the settlement agreement signed as to prevent the back again a lawsuit. To have decided not to prosecute, revoke the decision not to initiate a prosecution, suit again; made of reprieve of prosecution, public prosecution to the court in time; have a lighter sentence, according to the law of protest.

Fifth, the establishment of national compensation system.The establishment of public interest organizations, funding, some with criminal reconciliation cases the offender condition, family condition is poor, some victims are unable to obtain the complete compensation, this time in order to ensure the equality of criminal reconciliation, can be provided by the state compensation. The victims, it is necessary to soothe the spirit. These compensation and solatium of spirit from the assistance fund. Assistance fund part invested by the state, a part from the social from all walks of life to voluntary donations raised.

Sixth, give prosecutors the right of supervision on criminal reconciliation.In order to prevent criminal reconciliation to criminal money, forcing reconciliation, reconciliation regret, breach of privilege, favoritism and other illegal acts, procuratorial organs supervision on criminal reconciliation legislation. On the one hand, the procuratorial organ is the legal supervision organ, on the other hand, the procuratorial organ itself also has the function of investigating crimes. The public security organ for criminal reconciliation, usually not on file, withdrawn, not to arrest, not to initiate prosecution, coercive measures, shall be submitted to the investigation and supervision departments of procuratorial organs and the public prosecution department for examination; for the people's court in the trial stage for criminal reconciliation, the public prosecution department to carry out a careful review of the court of law, facts and the judgment, does not belong to the criminal reconciliation cases and reconciliation agreement does not perform or not completely fulfilled, shall propose corrective advice, when necessary, to protest; for the procuratorial organs for their own criminal reconciliation, on one hand the higher-level hospital record review, on the other hand, the case of quality supervision and inspection institute department for examination, found time to correct the problem.

Three, the criminal reconciliation system design

The basic principle of criminal reconciliation

1The principle of voluntary.Reconciliation "is a private right of citizens. And the suspect, the victim should fully respect the parties will, any organ or individual may compel the parties reach a settlement agreement, and content must be the true meaning of the parties. In the crime suspect voluntary guilty case, investigators should pay attention to whether the victim will put forward for review of reconciliation, rather than the outside pressure or forced to. Because of the legal consequences of criminal reconciliation on the criminal suspect is very favorable, so the vast majority of suspects agreed to a settlement, the key lies in whether the victim agreed to a settlement, although some cases in accordance with the applicable scope of criminal reconciliation, but because the victim is not willing to settle for a variety of reasons, the case handling personnel shall respect the opinions of the victim.

2, interest balance principle.Criminal reconciliation, the full protection of the rights of victims, but also can not ignore the state, private and public interests. For the violation of national, private and public interests, although both parties are willing to, also cannot carry on the criminal reconciliation.

3The principles of fairness and justice.In the process of reconciliation, justice the protection of criminal suspects, the victim's legitimate rights and interests of the parties, but not necessarily equal protection. Criminal reconciliation should take to protect the interests of the victim as the core, at the same time, to protect the interests of the criminal suspect, and strive to achieve fairness. In criminal reconciliation, victim and suspect should stand in the equal dialogue platform, both sides can not exist powers of oppression, the victim can't because due to a power or stress, and give up their legitimate rights of criminal suspects, not because of a power or stress and harm their legitimate rights, at the same time the victim is not price oneself out of the market, put forward unrealistic suspects to fulfill the obligation.

4The principle, follow the procedure.The application of criminal reconciliation or consent, shall be submitted to the signature of a written application to the judicial organ. The suspect, the two sides reached a settlement agreement, shall make a written settlement agreement, the host, both parties, witnesses have to sign the settlement agreement, to ensure that the reconciliation agreement. Through the normative procedure operation, ensure that the criminal reconciliation work in order to prevent judicial corruption.

Two application of criminal reconciliation

1, the parties premise. Both parties agreed to a settlement and from the real meaning.

2, clear the victim. The criminal reconciliation must be specific to the victim (including personal and collective) exists as the foundation, the suspect and the victim must be natural persons.

3, the offender's behavior has violated the criminal law, constitute a crime shall be investigated for criminal responsibility,, and the facts are clear, evidence really fully.

4, the offender is repentance, to confess their crimes do not regret, and active compensation, restitution, apology, and has earnestly fulfill.

5, the victim side the perpetrators of understanding, and requests or agree to the offender punishment according to law.

6, the suspect has the economic capacity of compensation or other remedy, can compensate for the actual loss to the victim behavior.

Three the scope of criminal reconciliation

The criminal reconciliation should be minor criminal cases, part of the criminal offence is serious, the theory can also reconciliation, the ultimate goal is to reduce social contradictions, and promote social harmony. From the theoretical perspective, the scope of criminal reconciliation cases can be divided into three categories: legal situations, circumstances, discretionary exclusion.

1The legal situation.One is explicitly stipulated in the law to have constituted a crime, but can not be held or from crimes shall be investigated for criminal responsibility; two is the law can be given a lighter or mitigated punishment did "not cause further harm to society", first offense, discontinuation of crime, I negligent crime, juvenile, elderly crime subjective malignant small, social harm of lesser crimes; three is likely to be sentenced to three years in prison, detention or control, probation, fined, qualification punishment of minor crimes. As the neighborhood relationship between civil disputes caused by minor injury cases, juvenile delinquency, crime, students in pregnant and lactating women crime, social vulnerable groups because of the legitimate rights and interests of infringement caused by the crime and other minor crimes.

2Discretionary circumstances.According to the specific circumstances of the case is specific and crime, the crime of serious though, but may be given a lighter cases, and also have the conditions for reconciliation, the criminal reconciliation in accordance with the law. Includes two cases: one is the heavy and light. The so-called the heavy and light, refers to the crime is heavy, but the defendant has frankly, surrender or meritorious statutory and discretionary lighter, mitigating circumstances, and by the victim's understanding, the law then leniently, reduce processing; two is the light and light. The so-called the light and light, is refers to the criminal suspect crime has no legal or discretionary lighter, mitigating circumstances, but according to the lenient and severe criminal policy, can be dealt with leniently, if by the victim's understanding, also can be dealt with leniently.

3, exclusion.That is not the applicable criminal reconciliation. The following case should not apply to reconciliation: one is the duty crime cases officials; two is a case of serious crime severely, aggravating circumstances (such as a recidivist, recidivist, violent crimes, mafia crime involving evil etc.); three is to endanger national security and public safety crime; the four is a group of crime and the unit crime; five is the behavior of repeated crime; six is the behavior of people in prison, probation, reeducation through labor and was forced to take measures during the crime; seven is the other is not appropriate for the reconciliation of criminal cases.

From the practical experience, the application of the criminal reconciliation cases, mainly includes the following types of cases: (1) tell just processing of cases; (2) criminal cases of minors and students; (3) cases of criminal negligence, such as negligence causing serious injury, death caused by negligence, traffic accident and so on; (4) caused by civil disputes, marriage and family contradiction of personal injury, criminal cases of infringing property rights; (5) the social vulnerable groups because of the legitimate rights and interests are violated by crime, such as legal debt, economic disputes and illegal detention, intentional injury case, destruction of property case; (6) pregnant and lactation women crime; (7) may be sentenced to three years in prison, detention, control or single property punishment, the qualifications punishment to minor criminal cases: such as the case of intentional injury, burglary, assault case communication free case, case of abandonment etc..

Four of the criminal reconciliation start

All aspects of the criminal reconciliation in the criminal procedure can be started. The first review of whether it belongs to the scope of criminal reconciliation cases; secondly, examine whether the suspect has the performance of repentance, the initiative to plead guilty; third, the victim has no reconciliation will, if the victim agreed to a settlement and the real meaning, shall submit a written application I have signed to the case handling organ; fourth, review the criminal suspect has no economic compensation the ability or other remedies, whether the actual losses caused to the victim for its behavior. Have the above conditions, the investigators can organize the parties, witnesses, in the equal dialogue platform, not subject to external pressure and stress reached a settlement agreement, the settlement agreement clearly performance period, the case handling organ and personnel supervision and the settlement agreement, and according to the fulfillment of reconciliation disposal.

Five the criminal reconciliation's disposal

The criminal reconciliation in the different organs and every link of the legal proceedings, the disposal methods and the results are not the same.

In the investigation stage.The parties reached a settlement in the investigation, in accordance with the law can not be investigated for criminal responsibility or exempted from criminal punishment, the public security organ may revoke the case of private prosecution; meet the conditions of the minor criminal cases, the parties reached a settlement, the public security organ according to the settlement agreement no longer register; the law need to be investigated for criminal liability, the parties reached the settlement agreement, if not to take coercive measures to arrest, shall be submitted to the procuratorial organs for examination, and timely case making, transferred for examination and prosecution.

In the two stage of review of arrest.The parties reached a settlement agreement, in accordance with the law can not be investigated for criminal responsibility or exempted from criminal punishment, the public security organ should cancel the case; the law and criminal responsibility, both parties have reached a settlement agreement, and has been implemented, in accordance with the law may be sentenced to three years in prison, detention, control or single office property punishment, qualification punishment of minor criminal cases, can not make a decision and arrest, report to the superior procuratorate record.

Three in the prosecution phase.The criminal reconciliation with three different cases.

One is not to prosecute (light offence not v.).According to the "criminal law" the 142nd stipulation: for minor crimes, in accordance with the criminal law does not require punishment or be exempted from punishment, the people's Procuratorate may decide not to initiate a prosecution. Non prosecution in criminal reconciliation should be used, but in the judicial practice, non prosecution discretion by human limits, not the prosecution rate was included in the scope of examination of procuratorial work, clear not to prosecute the rate of criminal cases, the fact that the procuratorial organ of our country can not afford to prosecution discretion authority within minimum range. So we should enlarge the discretion of public prosecution of procuratorial organs, the public prosecutor may decide not to initiate a prosecution according to the different circumstances of the case, on one hand, can avoid the criminal reconciliation in the actual operation of the relative uncertainty, so that the two sides reached a settlement agreement the parties as soon as possible out of the criminal procedure, safeguard their legitimate rights and interests of the other; on one hand, also reduce the criminal reconciliation process, give full play to the function of the diversion of criminal reconciliation procedure.

The two is deferred prosecution.The deferred prosecution refers to the procuratorial organs should be prosecuted criminal suspects, according to the nature of its behavior after, age, damage degree of comprehensive consideration temporarily not to prosecute, the test period, to reconstruct and introspection, according to the performance of repentance to decide whether to prosecute system. The degree of harm, not repentance attitude good, I first, negligent crime, juvenile, elderly prisoners, deaf and dumb and disabled, and pregnant and lactating women crime crime, college students crime, may be sentenced to 3Years of fixed-term cases, if the criminal suspect to repentance, to the victim recover crime loss, gain the understanding, you can apply the deferred prosecution. If the performance of the test period, the prosecution will no longer.

Three is the sentencing suggestion.Shall be prosecuted according to law for the case, the parties reached a settlement agreement and the actual performance, in the prosecution of the at the same time, the lighter, mitigated punishment sentencing proposal to the people's court, the people's court shall be taken into consideration.

Four in the court trial.The criminal reconciliation through settlement after no longer pursue after the criminal responsibility shall be investigated for criminal responsibility and reconciliation but lighter punishment way to deal with.

At the trial stage, the private prosecution cases, according to the "law of criminal procedure" 172ndHerein, in a case of private prosecution for mediation by the people's court, judge to reach a settlement agreement in mediation; private prosecution before a judgment is pronounced, also can arrange a settlement with the defendant or withdraw his prosecution. As for the application of the criminal reconciliation in cases of public prosecution, the victim and the defendant in the trial process (collegiate before)To reach a settlement, does not require a victim to pursue criminal responsibility of the accused, the prosecutor to review and report by the hospital leaders agree, can withdraw the prosecution, the public security organ should cancel the case, not to pursue the criminal responsibility of the accused. In such cases the term limits should be consistent with the discretionary non prosecution, prosecution term limit, limited to be sentenced to 3Years of fixed-term cases.

For the cases of public prosecution is not significantly impair public interests but not be mitigating circumstances, as long as the reconciliation factors in the case, request lighter punishment in reconciliation and the defendant after the people's court for prosecution, in the views of the lighter punishment. A lighter punishment is not not punishment, but the judges according to the specific circumstances of review appropriate leniently. Conviction and sentencing in criminal cases shall reflect the "Leniency" of the criminal policy, and criminal reconciliation can make the victim get economic compensation and spiritual comfort, but also can improve the perpetrators of repentance and enthusiasm actively restore the crime consequence, no obvious adverse effect on the public interests and security, to reach a settlement with the victim the offender should be from the "width" of the object.

At the trial use of criminal reconciliation concept, focus on both criminal responsibilities shall be investigated and punished more leniently.

 

(of Langzhong City People's Procuratorate chamber  ChenKam)

 

Reference.

1, "Shanghai law net"Xu QingChen Gang"Practice" part of the prosecution of criminal reconciliationMarch 12, 2008.

2, "method" the world netChen GuangzhongGe Lin "of" criminal reconciliationIn January 26, 2008, 27;

3, "China Prison Information Network"Dong Zuhao "On the criminal reconciliation system" in February 20, 2008;

4, "Oriental net"Hu Xiansheng Xiang Qiping"Thinking about the prosecution of criminal reconciliation"August 7, 2007