The criminal legal system of our country after the construction of more than 50 years, although has made great achievements, however, both the legal system framework and function division, or specific provisions, there are some problems. The party's "Sixteen big" put forward "to strengthen the socialist legal system construction", promote the reform of the judicial system "task. To accomplish this task, we must consummate the legal system in China from legislation. The author puts forward his own opinions on several problems of criminal legal system in our country.

A  On the criminal legal system

The criminal legal system, the traditional view is composed of two parts, one is the substantive law is the "criminal law", is a procedural law is "criminal procedure law". In the "Prison Law" promulgated after, many legal workers to make a independent of "Criminal Procedure Law" beyond all the execution of "criminal execution law", constitute the legal system of criminal is decomposed by the two parts into three parts, even on the legal system of criminal execution are put forward a conception of complete.

      Would you like to create an independent criminal execution law, the author thinks, this is from the two aspects to consider. First, from the jurisprudence of criminal execution Is it right? Clear what procedures? Second, according to the judicial practice, there must be a separate criminal execution law.

   We first analyze the problem in the first place, to find that always generation, should first make clear what is the procedure? What are the basic elements of litigation? What is the procedure? As everyone knows, both Chinese ancient or modern, both China or foreign, litigation is defined by the government (judicial) in the parties and other participants in the proceedings in next, in accordance with certain procedures, to solve the dispute between the contending parties activities. Both criminal and civil litigation, it has the following characteristics or that include the following basic elements: first, the main action must have the court and the original, accused both sides, three lack any one party cannot produce procedure. Second, Proceedings of the task is to ascertain the facts, clarify and determine the liability undertaking. Whether civil or criminal proceedings, whether in theory how many kinds of explanation, how many kinds of discussion, the two basic things is to determine the best. Where do not have these two basic characteristics of the judicial activities can not be called the litigation activities, that is: first, the subject must have the three party to participate in the proceedings, rather than one or both. Second, the whole process action activity is determined to find out the case, responsibility. Based on this, we should give the criminal procedure under such a definition, namely the criminal litigation refers to the military judicial organs in both parties involved to ascertain the facts, determining whether an act constitutes a crime shall be given to the crime and the criminal punishment activities. This definition is different from the general criminal explanation, is also different from the narrow sense of criminal interpretation. Criminal procedural interpretation narrow ignores the facts in the case of this task in the criminal procedure, the criminal procedure is shortened to trial a particular stage of the proceedings. But the general criminal interpretation enlarges the task of the criminal litigation, the criminal procedure extends to trial after the implementation of the. The author thinks, license theory about criminal prosecution stage division theory, criminal procedure should only include file, investigation, prosecution, trial stage four. Criminal execution is not a program, it should be independent of criminal litigation outside. Because the two basic characteristics of criminal execution does not have the general procedure, it is the task of a have been identified in the criminal responsibility to be implemented. This point, the law of our country has given clear Determine. China's Criminal Procedure Law Article3Article, article6The constitution, articleArticle 135The name on the participation of criminal judicial authority list, not including those responsible for criminal execution -- as the main organs of the judicial administrative organs of the prison.

   Now we analyzed second problems, and whether the existing code of criminal execution law system can effectively ensure the real implementation of penalty, the criminal execution law is whether complete, whether science, whether can truly realize the "criminal legislation to combat crime, the legislative intent of the protection of the fundamental interests of the people". We know, "criminal law" as the substantive law, which is the main provisions of what kind of behavior is a crime, what kind of crime should be given to what kind of punishment. "Criminal law "As a code of conduct, is a qualitative specification, is a static specification, is a scale. "Criminal Procedure Law" is the main provisions of serious illegal behavior in social life, how to check, to determine how to find out the facts, after "criminal law" provisions, used to measure, is a crime, constitute what nature of the crime, should bear what kind of responsibility, and the decision will be in the form of decide. Here on crime and criminal responsibility is a recognized problem. But any time, national criminal law system is not only to harm the social behavior was identified, its fundamental purpose is to harm the social behavior of combat, sanctions, only to fight the powerful, sanctions in place, the legal system that has real meaning, so the criminal execution is the foothold of the criminal legal system. If so the legal system of China's criminal enforcement can meet this requirement? The answer is no.. First, about the criminal execution law too messy, style. Owing to heavy, heavy, light case trial idea of execution, so in the law making, top-heavy phenomenon is quite serious, for a "Criminal Procedure Law", a total of225A case to trial procedure, the provisions of clause is125Bar, and on the implementation of the provisions are only17Article. Although the state enacted a "Prison Law", the prison execution as prescribed, and on other penalty for executive does not have a law to systematic regulations. And the "Prison Law" on the prison execution is just to make some provisions in principle, many detail problems in judicial practice implementation are the treatment according to the provisions of the Ministry of justice, the prison administration, first in the form is not a complete system. Second, about the kinds of punishment execution of the provisions are not perfect. Our country's penalty has five principal, three additional punishment, "Criminal Procedure Law" on the eight kinds of punishment execution of the specific provisions of a total of only seven, that is to say the average penalty less than a prison execution, there is a "Prison Law" as the basis, several other kinds of punishment execution several without the specific operating procedures.

   Because the legal system is not complete, not standardized, leading to the judicial practice is not know what course to take an executive department, two are some kind of punishment cannot be enforced, three is the public did not know the criminal execution, the criminal execution has great concealment, easy to produce law enforcement injustice, corruption in the law enforcement. In the criminal enforcement of this very serious law enforcement for the variable is not the serious behavior, legal authority to lose, lose the criminal legal deterrence.

  To sum up, we can draw a conclusion: the criminal execution is not criminal litigation; criminal implementation law is necessary to create an independent "outside" of "criminal procedure law".

Two,   On the functions of the judiciary in the criminal justice activities

     "Criminal Procedure Law" article3Article1Paragraph: "in criminal cases investigation, detention, arrest, pre-trial, public security organs shall be responsible for. Approval of arrest, prosecution, procuratorial organs investigation of cases directly accepted by the prosecution, the people's Procuratorate, responsible for. The trial by the people's court shall be responsible for the." This is the law for the public prosecutor, the three basic functions of law authority in the criminal justice activities, in the "criminal law" the fourth series, to the people's court and increased death and property executive functions, the public security organs increased public surveillance, detention punishment, execution of punishment has delivered more than stage acts, in a years deprivation of political power penalty execution, the temporary execution outside prison execution, the probation inspection and supervision functions of parole. This function basically is to1979Following the "Criminal Procedure Law" of the year.1979Year "Criminal Procedure Law" is a new China first code of criminal procedure, the code of the fight against crime and the criminal activities in a standardized way, play a positive role, but there is no doubt, because of the conditions, the code is not the science of division of functions of the judicial organ. Now the "Criminal Procedure Law" to the judicial organ function partition is scientific is not corrected, it exposes many disadvantages in judicial practice.

First, affected the play all the basic functions of the judicial organ. As mentioned before, the people's court is the judicial organs of the state, its basic function is to trial. The court assumed the death penalty and property penalty execution, conflict and its special function of trial,Affect the efficiency of the work of the court. Like many civil cases, administrative cases in making effective decisions, the court no more energy to carry out, so that a legally effective judgment without legal significance in practice, the execution of property punishment to carry out. The people's Procuratorate is the legal supervision organs, its basic function is the legal supervision. Procuratorates bear investigation cases, prosecution task, will inevitably affect the legal supervision function, which is subject to the supervision authority and activity was not affected by the legal supervision. This is a problem of public security. The basic duty of the public security organ is a criminal investigation and security management, in the current grim situation of public security, the task is arduous, but also bears so many criminal execution, in fact not only affects the basic function, and make the non basic functions work enough. If the bear criminal execution, in addition to the execution of punishment implemented delivery more than the actual implementation in the year following the punishment, on the other the execution of punishment that basically is a mere formality.

Second, do not accord with the criminal litigation "division of labor with individual responsibility, mutual cooperation, mutual restraint" principle ", is not conducive to the correct and effective enforcement of the law". The criminal procedure law article7Stipulates: "the people's courts, the people's procuratorates and the public security organs shall, in conducting criminal proceedings, the division of responsibilities, cooperate with each other, mutual constraints, to ensure the correct and effective enforcement of the law". Here, we do not discuss "mutual restraint method is scientific, this principle in the law provisions are not necessary, we focus on the analysis of the current functions can ensure the correct and effective enforcement of the law. The accurate and effective, all the meanings in criminal justice, is to avoid leaning to either side, do not make good wronged, don't let the criminals escape punishment, it is justly the entity concept, there is rapid and strong time meaning, as already said the current judicial organs function division of labor is not conducive to give full play to its function, come very naturally, judicial efficiency can not be normal play. But from the development process of criminal activities, from the case to the trial court, the three judicial organs, as long as a part of any work can not be fully in place, repeated reversals between the judicial organs in handling procedures, handling of the aging effect. If the people's Procuratorate to the public security organs for prosecution, that the evidence is insufficient, can the supplemental, supplementary investigation time of a month, supplementary investigation is completed to the procuratorial organs, procuratorial organs prosecution reviewing whether the need, but also can be used for a month, sue to the court case, if the court in the trial process that's Procuratorate requires supplementary investigation, the supplementary investigation time and a month, and then to the court and a month. It means that once appear this kind of circumstance, process and so on between the judicial organs of at least4A month, plus the normal handling of the time, the Procuratorate approved the arrest of detention of a criminal case to the end date of second instance, the long time for18Months10Day. So and so on, is not conducive to the judicial organs, is not conducive to the case handling efficiency, is not conducive to the protection of the good no more wrong, is not conducive to effectively combat crime.

Third, the criminal justice activities lost legal supervision in large space. Because the criminal judicial activity is mainly the internal activities of the judiciary, so the legal supervision is more important. But the current judicial system to give full play to the function of legal supervision of the procuratorial organ defects. Procedure is not in place. In the "criminal law", in addition to the provisions for approval of arrest, examination and decision of the end materials transferred by the public security organ on behalf of the state prosecution, public prosecution, the court filed a protest outside, almost no other about how to conduct legal supervision regulations, and the work is the criminal judicial procedure, not to mention the basic or is not legal supervision. Therefore in the judicial practice, there are a lot of space to lose the legal supervision of the public security organs such as: the case on file for investigation in the procedure is legal, there is not a torture to extract confessions and the problem of illegal evidence, there is no problem with criminal punishment, the court's judicial activities have not pervert the judgment problem, etc.. In recent years, figures show that, after a number of court sentenced considerably less than the number of public security case, the middle holes so big, can't say no because of legal supervision is not in place there is a pervert the law problems of justice. Two is the main legal supervision itself functions not legal supervision, also is the athlete is also judge problem. Now the prosecution bears a duty crime cases reconnaissance mission, they are part of this case the function activity, has no authority to supervise it, this can not be said is not a criminal judicial supervision of the gap on the.

At present, the biggest problem in the judicial field exists is the efficiency is not high, judicial injustice, and the problem of judicial injustice is directly undermine national confidence in the national order, some people say that is one kind of sorrow, this not too much.

   In order to ensure the fairness, justice, criminal justice activities accurately, effectively, the author thinks, the first and most important problem to the division of functions, adjustment of the judiciary, the reform of the judicial system, which is the priority among priorities. May consider adjusting function in the following way:The first,Investigation and prosecution functions merge, do who investigation who prosecuted.Considering the combination of the party and the construction of national political power, the discipline inspection and supervision organs function identified as the party and all the State functionaries honest and governing responsibility supervision department, the exercise of official business management of Party members and representatives of the state, does not constitute a crime according to Party discipline and state law, constitute a crime by the discipline inspection and supervision department to the courts, this is equivalent to the Hongkong ICAC functions, all the other social security aspects of the crime, the public security department investigation and prosecution, cancelled by procuratorial organs placed on file for investigation of the task and the public prosecution in court this link. Second,The trial and criminal execution of independent. The court for trial, all criminal execution is responsible by the judicial administration.Third,The function of legal supervision.From the criminal case, the case handling organ shall notify the procuratorial organs, procuratorial organs to supervisors participate in judicial activities, until the criminal execution. Only in this way, can we truly reflected in ensuring fair, legitimate, effective legislative intent under the premise to realize the rational division of labor, carry out their duties, and not chaos, and powerful.

   Function relates to the authority of the Department, in the present circumstances, the rights and interests are combined, promote the reform of the judicial system, must be determined to resolutely, unequivocally out interest circles, from the national long period of stability interests, serious research, sophisticated design, step in place. 50 years, promoting democracy and legal system, have time to brook no delay to solve this problem, this problem must be highly valued by the party.

Three,   On the penalty settings

The criminal law of our country penalty are divided into principal penalty and accessory penalty two, the principal is divided into control, detention, imprisonment, life imprisonment and death. Five, the supplementary punishment is divided into fines, deprivation of political rights, and confiscation of property three. In addition, to a foreigner who commits a crime may be applied in an independent or additional deportation application. The penalty is a species1979Criminal law determined,20Judicial practice has proved over the years, some kind of punishment all along is rarely applied, the provisions of the law is entirely superfluous words, some kind of punishment with the increase in judicial exchange social reform, also need to be modified. According to the actual situation of our country judicial practice, referring to foreign experience, to put forward the following suggestions in our country's criminal reform:

1 Cancel the current law, notwithstanding the provisions but little penalty of application in judicial practice. Here is the main control and detention of two principal. Although the criminal law106Is set for a control325At the provisions of criminal detention, but in the judicial practice rarely used these two kinds of punishment. Investigate its reason, one is the major and important cases increase faster, countries of the combat focus on major cases, relax the small case case against the light, thus probability for detention and control is not high. Two is the two kinds of punishment applicable difficulty is greater, the two kinds of punishment are with the prison together, the same facts of the crime, can be applied to less than five years imprisonment, criminal detention, control of three kinds of punishment, the judge is difficult to grasp the sentencing range. Then a probation measures plus, the judge to grasp the accurate, would rather go to prison for discretion in this one sentence, can grow up to a point, or a little shorter, if will be sentenced to lighter, may be sentenced to probation, no need to apply the criminal detention and the control punishment. Three is the Criminal Justice program impact the detention punishment applicable conditions. The current criminal cases generally after the arrest of detention investigation stage, from the arrest, the suspects have lost personal freedom. The public security, procuratorial investigation to prosecution to the court, case handling process lasted several months, this time the court and sentenced to criminal detention or control has little practical significance. Four is the implementation of difficult. The target of our economic system reform, is to advance and to establish a socialist market economy. Under the condition of market economy, one of the activities and the scope of activities cannot be fixed at one point, the public security organ for his supervision can't do that, so the control punishment actually does not have any meaning.

So the two kinds of penal reform, the author thinks that should be eliminated, replaced by fine and labor service mode. As the application of detention and control crimes are not serious crime, the penalty shall be sanctions for offenders, and national benefit is more than fraud. The criminals pay a fine, they can work in the community, is conducive to the national construction, and the state and reduce the execution cost, increase income. For can not afford the criminal penalty and the circumstances of the crime is lighter, can take some labor, in the community correction. In this respect, there are many useful experience of foreign countries, we can learn from.

2Adjust the additional penalty, apply. The main is to adjust the fine and confiscation of the application. The adjustment of penalty, its reason is fine as the implementation of the principal effects of additional punishment. For example, in the process of execution of a criminal in prison, because of difficulties in the family couldn't pay the penalty according to the decision, so criminals in prison sentence, in the process of parole rights tend to be affected. "Criminal Procedure Law" article221Regulation: "sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment of criminals, or rendered meritorious service during the period of execution true repentance, shall be commuted". But the fact that many criminals should be reduced because they did not pay or not pay the fine without commutation. This not only violates the criminal should enjoy can obtain commutation power in the execution of punishment, but also greatly dampened the enthusiasm of reforming criminals, and even affect the supervision order and safety. Two additional punishment cannot be completed. If the criminal in prison in the process of fine not implemented, while in prison once expired, in accordance with the additional punishment to punishment principle, penalty execution department must the unconditional release of ex offenders. The criminals once released, the fine would be unable to perform, although the provisions of the criminal law of the people's court at any time "that the person subjected to execution has the property, should be ready". But in fact the person to be enforced as long as out of jail, court possibility to recover almost does not exist. How to solve this contradiction, the author thinks that the elastic term solution. For example, Zhang crime, sentenced to three years in prison, a fine of fifty thousand yuan. If the completion of the execution of fine penalty, he is still not implemented in place, then it can be folded into his penalty amount prison days, this can avoid conflicts between the two kinds of penalty in execution.

On the application of the penalty of confiscation of property adjustment, mainly is the conflict of criminal law and the civil law and the constitution. China's constitution stipulates: "all legitimate labor income and legal non labor income state protection. While China's criminal law provides, can the confiscation of property of a part or all of the. This provision is actually refers to the legal property of criminals shall be confiscated. The author thinks that the provisions of the criminal law on the legal property confiscated criminals not only against the constitution, but also against the law. From the constitution which violates the principle of the state to protect the property rights of individuals. From the civil law, the confiscation of property is not only the criminal punishment, but also violated the criminal legitimate rights and interests of the relatives. For example, in a criminal sentenced to death with the property confiscated criminals, so in fact also violated its relatives, the legal right of inheritance to the property, and one of the basic principles of our criminal law is not to engage in criminal case. Since it is a legitimate property crime, so after the property holder dies, his relatives have certainly inherit its legitimate rights and interests of property, but now because of confiscated for legitimate inheritance relatives right is infringed, caused a revolution in the objective. So the author thinks that, we should cancel the confiscation of property of this kind of punishment. It was only after the criminals deprived of the right to life, their legal property and no legitimate heirs, in this case, the law may be confiscated. Of course, the illegal income for the criminals and the unjust enrichment, should be specified to be recovered.

      Four, about the penalty penalty change ruling right

      The implementation of the penalty of change, there are three types: one is the sentence of the change If the death sentence, suspended for two years, during the death penalty execution of probation, if not intentional crime, the death penalty probation execution expires, should be changed to life imprisonment; was sentenced to life imprisonment, if true repentance or rendered meritorious service, can be reduced to fixed-term imprisonment. Two is the date change, is sentenced to public surveillance, criminal detention, fixed-term criminals, during execution, he conscientiously observes prison regulations, accepts education and reform, shows true repentance, his sentence may be commuted. Three is the implementation of site changes, is sentenced to prison or criminal detention, because of serious diseases on medical parole, or are pregnant or breast-feeding her baby, if there is no danger to the society, can the probation. No matter what kind of situation changes, must through certain legal procedures, by the relevant departments to make a ruling. The current judicial system is, except for third case is changing the execution place by the approval of the competent departments shall report to the execution of punishment, the remaining two cases were ruled by the court, namely the first case (the sentence of the change) ruled by a higher people's court, second cases (sentence change) ruled by the intermediate people's court.

However, the judicial practice has proved over the years, this penalty executing discretion in setting is not scientific. First, the management right and the decision phase separation. Managers have no right to make a decision according to the actual performance of the reward of reforming criminals, decision makers do not understand the specific performance of criminals but have the right to adjudicate according to material management. Chinese law, criminals can obtain commutation, depends on whether they have an intentional crime, whether true repentance or performed meritorious service, and the court does not directly manage the criminals, the criminals have to deliberate crime and whether there is repentance or performed meritorious service is not clear. Obviously, the court exercises the right to change the implementation of decisions is not appropriate. Second, from the court's basic responsibilities and mode of trial, the court should not exercise this power. The basic function of the court is of a certain whether acts constitute a crime and the crime shall be given the punishment of ruling, and the court referee program must have both parties to participate in the. But the penalty changes not involving offenders culpability, and the courts in the trial of prisoners penalty alteration procedure only by virtue of executive authority to submit materials were written trial, the prosecution is not involved, nor as a party to the case of the prison staff participation, the elements of this trial is clearly does not have the court trial, the court as the judge does not have the identity. Therefore, the enforcement of criminal punishment by the court to exercise jurisdiction, is beyond the scope of the basic functions of the courts, nor with the court procedures, the court to exercise this power is clearly not appropriate. Third, penalty executing authority is exercised by the courts in the judicial practice, many problems exist in the. First is the existence of lax enforcement of the law, the ruling is not public suspicion. The court did not understand the situation of prisoners, and What I say goes., was convicted of people have no chance to participate, no supervision organs involved in supervision, it is hard to say that this ruling is fair, be perfectly logical and reasonable. Two is the legal effectiveness to reduce the influence of criminal reward. The sentence of the change to the higher people's court, the sentence change to the intermediate people's court, and do not say to the program affects the working efficiency, only from the operational level, the people's court shall hear all cases within its jurisdiction to the executive authorities in the legally prescribed time, it is difficult to do. While the courts tend to drag on for a long time to execute authorities of the case material to make a ruling, which has become the universal existence of indisputable facts.

Then, the execution of punishment in the penalty change authority who exercise more appropriate? The author thinks, the penalty executive organs directly exercise their right. There are three reasons: first, the direct management of the criminal penalty executive organs, the understanding of the real situation of the offender, the executing organ shall exercise jurisdiction, can fully reflect the consistent principle of responsibility. In second, the penalty executive organ directly exercise their discretion, more directly, timeliness. The execution organs directly determines the perpetrators of reward and punishment, can inspire plead guilty, well behaved more actively transforming criminals, turn over a new leaf, early Cenozoic, is not good for the performance of the criminals can also strengthen the new desire, is conducive to the stability and safety supervision order. Third, the current penalty execution management system can guarantee by the execution organ to exercise the change of ruling Justice, legal rights. The current penalty execution organs of internal management mechanism is perfect, and the procuratorial organs have permanent monitoring of the superior departments in charge, the regular inspection and supervision. Program execution organs to exercise the rewards and punishment mechanism from the point of view, are carrying out the sunshine project, three list decide way, where there is a reward, is recommended by the criminal trial, or prison prison, then posts, comments, then by the prison administration, discipline inspection and supervision departments, the prison authorities, in prison the procuratorial organs examine, then publication. The strict procedures, standardized operation, more impartiality and seriousness. As for internal in executive organ, individual property is particularly serious, criminal responsibility is especially heavy penalty change adjudication can suitably increase the attribution to the executive authorities, but in general by the executing organ directly exercise.

(this article published in the "Hunan law"