The criminal law of China's probation system

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  • / Author: Aaron Lewis
               The theory of probation system in our criminal law
                                  - Yu Yan in 2007
Abstract: China's probation system, as a penalty sentencing system occupies an important position in the system of criminal law, in the process of China's rapid economic and social development have also played an important role, but in the rapid development of China's economy and society, people's material and cultural living conditions has increased, in the application of the probation system but there are many problems in legislation and judicial in our country, seriously hinder the realization of the construction of harmonious society in China, thus to improve the probation system not only has the significant practical significance, but also conducive to promoting China's development of the criminal law.
 
Keywords: improve the probation system, defects, significance.
 
   Suspended by a British judge Hill (Hill) initiative, began in USA Boston "Probation law", 1889 Brussels International Criminal Law Society meeting decided to probation as a formal criminal law enforcement system, have been widely adopted by various countries criminal legislation. China's probation system is summarized in the domestic judicial practice, develop and learn from foreign legislation experience, it is not the execution conditions of the original penalty penalty system, including the general probation and wartime probation, as a penalty system in our country, probation, fully embodies the combination of punishment with leniency, combination with education and punishment of criminal policy, fully reflects our penalty humanitarianism spirit, in the education and rehabilitation of criminals, plays an important role to realize the purpose of penalty and social aspects of crime prevention, but due to the lack of its own and the judicial practice and other reasons, the use of the process, exposed some problems to be solved. Through the probation system itself and the judicial practice of analysis, the author from the legislative and judicial aspects to analyze China's probation system.
One, the legislation.
 (a) provision of conditions of probation is too abstract principle.
According to the provisions of Article 72 of the criminal law of our country: "sentenced to criminal detention, the following three years there are criminals in prison, according to the circumstances of the crime and the performance of repentance criminals, probation does not cause further harm to society, to probation. A criminal whose sentence is suspended, if a supplementary punishment is imposed, the supplementary punishment shall still be executed." The criminal law seventy-fourth stipulation: "not for recidivism, probation." This is the provisions of the criminal law on the applicable conditions of probation, the article two of criminal law, we can see, only the "was sentenced to criminal detention, the following three years in Prison Criminals" and "does not apply to recidivism" these 2 conditions, the meaning of "repentance" law does not have specific provisions or interpretation, therefore, in judicial practice, the interpretation will appear the tendency of subjectivism, different regions, different judges have different understanding, some believe that as long as can truthfully confesses his crime, is a plot; some think, has a plot not only truthfully confesses his crime fact, but also other to explain the specific behavior of sincere repentance, such as voluntary surrender, positive gains or to give material or spiritual compensation to the victim compensation, expanding actively take effective measures to prevent the harmful consequences or prevent harm results, truthfully confessed accomplice. Secondly, what is the "more is a subjective determination does not cause further harm to society", arbitrary. "Do not cause further harm to society" is only a conjecture of judges and pre judgment. And this is the essential condition of probation application does, so the determined directly determines whether the accused person on probation. Some scholars and judicial staff think: identify whether a suspect no danger to society in the probation, shall be based on the circumstances of the crime is lighter and repentance for the fundamental condition. This and in front of what has "repentance" circulation, the subjective decision subjective. Thus, in the person of the crime is declared probation in a very awkward position. Because too abstract regulations legislation applicable to probation, not science, the specific evaluation criteria, and to cause between regions, between courts, even between the same court in the same case to make that same case different, make different decisions, and the law a serious threat to the legal authority.
(two) the narrow scope of probation
The article seventy-second of the criminal law only provides for the following detention, was sentenced to three years in prison criminals can use the probation, and for other kinds of punishment of criminals, even with the show real repentance, do not cause further harm to society condition, also cannot use the probation. Conditions of probation applicable object of the current criminal law is relatively narrow, is not conducive to expand the application of probation, the probation system restrict the full play of the function of education reform criminals. The probation is not only to avoid the evils of short-term freedom penalty, but also actively encourage the circumstances of the crime as light, method of social harmfulness of crime of small new. Suspended as no custody penalty measure, the objective requirements of expanding its scope, to maximize its utility. In the probation penalty, can apply to fines, deprivation of political rights. The Japanese criminal law twenty-fifth stipulation: for probation declared below 500000 of the fine, the provisions of article 132-31: French Criminal Law for natural person sentenced to five years imprisonment, a fine or penalty, limit or deprive the additional penalty refers to article 131-6, except to confiscation; additional punishment referred to in article 131-10, confiscated punishment except; closing mechanism and post decision, apply to the ordinary probation. In the application of the body, can also be of corporate probation, such as France's ordinary probation can be applied to corporate crime.
   (three) the provisions on probation offenders on probation during the test content to appear many problems. According to the provisions of Article 75 of the criminal law of our country: "a criminal whose sentence is suspended, shall comply with the following provisions: (1) comply with the laws, administrative regulations, submit to supervision; (2) reporting his activities in accordance with the provisions of the observing organ; (3) to comply with the investigation organ about the regulations; (4) leaves living in city, county or moved, organ for approval before." According to the 1998 of the Ministry of public security "public security organs to handle criminal cases procedure", in compliance with the provisions of the test period should make further demands of probation, (1) comply with the laws, administrative regulations and relevant provisions of the public security departments, submit to supervision. (2) in accordance with the provisions of the public security organs, regular reporting his activities. (3) to comply with the provisions of the public security organ. (4) from the county of residence, or moved to the city, should be reported to the county level public security authorities to approve the. (5) for the deprivation of political rights of probation has to comply with the provisions of article 288th of the regulations. (6) the specific measures of supervision by public security organs. Although our law on probation inspection content made the two provisions, but in the judicial practice is still difficult to grasp and shortcomings.
   First of all, the content of the study are vague, poor operation. The provisions of the "supervision" "activity", "the specific content of the" scope, "leave home" time, "supervision" operating procedures are not specified, this could lead to the probation test form, resulting in a number of probation is equal to "release", which affects the criminal law social effect.
   Secondly, the content does not reflect the special protection of juvenile offender. For juvenile special protection, pay attention to education and influence, is the world of the criminal policy. Most countries have regulations on juvenile offenders must be lenient punishment and as far as possible the use of non custodial measures. Our country is always pay attention to the protection of minors, in a variety of legal system will give the minors to care, to protect its growth. In September 4, 1991 the "people's Republic of China Law on the protection of minors" special provisions of the judicial protection of minors, and thirty-eighth stipulates: "the delinquent minors, the implementation of education, probation, save policy, adhere to education based, supplemented by the principle of punishment". The juvenile judicial intervention from the crime, as far as possible to avoid jail is a concrete manifestation of the criminal policy of our country, so in the legislation on juvenile delinquents shall be specified, probation is considered for the general case, at least should be expressly provided for in the probation for juvenile offenders to appropriate tilt. In judicial practice, be probation for juvenile offenders significantly at the end of the age, according to the physiological and psychological characteristics of juvenile, juvenile delinquents shall not be held to apply to not from the original environment, let them live in the original health and family environment, avoid the adverse consequences caused by the actual execution of punishment, easier to achieve the purpose of the reform. But the current probation system does not reflect the special treatment for juvenile criminal policy, both in terms of the applicable conditions of the probation period, and the contents are not make provision of distinction.
Finally, the contents of the probation system in China only pays attention to the control constraints, while ignoring the necessary help and protection. The criminal law of our country listed a series of "constraint" on probation, compared with the foreign criminal law, the lack of protection and assistance should be. Foreign criminal law focus on "Probation" and "protection of" protection and control are the two basic aspects of the investigation, the lack of any one may not reach the expected effect. Over emphasizes the probation a series of norms to be observed, the purpose is to make people far away from crime may induce the crime environment, premises and personnel, to prevent the relapse; protection is to help the criminal to solve the employment, medical, residence, to make it into society, to adapt to the social life. Many foreign countries for the two items provided detailed and clear. The "protection" of our country criminal without rules, although the public security departments of the probation contents is not limited to the provisions of Article 75 of the criminal law, but it is still the main emphasis on the supervision and management of probation. Despite the "for their legitimate rights and interests such as the school, love and marriage, and the allocation rules in place appropriate work, engaged or contracting some agricultural production should be protected", but to do not form a system, the practice is not effectively implemented. I only focus on tube bundle and ignore the protection of unilateral provisions, may cause the probation due rights are not effectively protected, thus affecting on the education and transformation of probation.
(four) the provisions of the conditions of probation revocation is not reasonable
77 the provisions of our criminal law: "a criminal whose sentence is suspended, and find that there are other crime had not judgment during the probation period for suspension or commits another crime, the suspension shall be revoked, make a judgment on the newly committed crime or newly discovered crime, the crime of the crime before and after the judgment of the penalty, in accordance with the provisions of method sixty-ninth, decided to carry out the punishment. A criminal whose sentence is suspended, during the probation period, in violation of the law, administrative regulations or the public security department under the State Council on probation supervision and management regulations, if the circumstances are serious, the suspension shall be revoked, the implementation of the original penalty." According to the provisions of this article, the three case the suspension shall be revoked: one is to study the period commits another crime on probation; two is the judgment is pronounced, other crimes have not previously judgment; three are in the investigation period, in violation of laws, administrative regulations or the public security department under the State Council Administration about slow penalty provisions, if the circumstances are serious. The first term of re crime nature is harm to society, the revocation of probation It goes without saying that. But the provisions of the second and third item is not so perfect. Second for the judgment is pronounced, other crimes have not previously decision, the crime is not defined in the statute of limitations, it has been the limitation of prosecution of crime without law. Although we according to the literal inference that "other crimes" should be the limitation of prosecution of crime, but a law should be clear, so as not to cause ambiguity. Because of the limitation of the destruction of social order, to smooth, and offenders also because of a long time to normal life in the community do not endanger society and reply for the normal people, do not need to be investigated. Therefore, if has been the limitation of crime according to the revocation of probation, is obviously unreasonable. Third the provisions of the "serious" is too vague, there is no clear definition, what is "serious"? What are the "violation of laws, administrative regulations or regulatory rules" is not specifically defined, judges have great discretion. Because our current status of judge is independent, easy because of all kinds of human and the relationship between the abuse of power. Therefore, "serious" should be further detailed provisions.
 
 Two, probation in judicial process problems.
   First is the probation unfair phenomenon is very serious, including two conditions: one is the probation of offenders in our country, the most suitable is the duty crime and other crime, is rarely; two is in the judicial practice of our country, the majority of probation is the household, and the alien application is very stingy. The reasons for this phenomenon, there are two direct reasons, one is the judicial corruption; but two local protection. The law and the reasons for such a phenomenon also stems from the provisions of law on the applicable conditions of probation probation is too abstract, on whether the lack of effective legal supervision mechanism, so as to some judicial personnel enter, subjective judgments or favoritism case, cause the judicial injustice, seriously polluted the legal sanctity.
   Secondly, the overall low proportion of probation application. According to relevant data, each year probation cases in China less than 20%, the cause of political phenomena are mainly: one is the influence of the traditional idea. In many people's consciousness, criminals only sentenced to life imprisonment or death is the punishment, sentenced to probation just made the announcement, criminals is not seriously reprisal, seems not to pay the price for their crime; two is the foreign population probation lack of institutional and legal protection. With the development of market economy in China, the rural surplus labor to increase, so in each area population accounting for no small proportion, the crime rate is not low, but in the application of probation, because it is in the social level, the lack of security, probation rate is very low, so this is one reason for the low rate of China's probation system application.
   Finally, the effect of the difference of probation. From the legal provisions on the inspection content of probation, the probation period in the test of public security organs are responsible for the execution of criminals, units and grassroots organizations to cooperate, but in practice it is very difficult to implement. The usual practice in practice by public security organs of the police station to appoint a deputy director responsible for supervision, the household registration police. But because the police affairs multifarious, this work has not been commonly incorporated into the daily work plan, and so on supervised probation of lax supervision, local organizations responsible for the supervision of also just stay in form, therefore, in practice, the probation that is basically equal to the crime person release, so that not only do not rise to reform criminals, criminal law of the people's education, but the law is not the majesty of the criminal thought, people thought that the law. The reason for this phenomenon is the lack of effective supervision authority is unreasonable and the probation contents of the law is not specific.
 
 
Three, the improvement of China's probation system can be considered from the following aspects.
   As a reprieve to encourage criminals to start with a clean slate system, with the humanitarian spirit, our country has been more and more widely applicable probation, probation in exposed the deficiency in judicial practice and judicial issues, seriously affects the realization of the objective of probation, so the perfection of probation is the objective requirement of reality. According to the experience of judicial practice in China, the situation of our country, draw lessons from foreign legislation, we think that should be considered to improve the work from the following aspects.
(a) should be refinement of probation conditions.
The criminal code seventy-second only provides the substantive conditions of probation, legislative or judicial organs shall further detailed provisions on how to apply the conditions to make, easy to judge the operation. First of all, to what situation belongs to the "repentance" provide clear and follow the basis, for example, surrender, was arrested after a truthful account of his crime, active expose other crimes, to take positive measures to avoid or reduce the losses caused by the crime, actively chairman and actively to victims of civil compensation and so on, can be regarded as specific performance penitent. Secondly, from two sides can be considered suitable for probation provides the specific application of the law oriented, namely: on the one hand, express to probation crimes or criminal type, guide the judicial personnel to meet the conditions of probation criminals such priority probation, such as traffic accidents, such as the crime of crime of fire, private prosecution cases, criminal negligence family or neighborhood disputes caused by light injury cases and has made the victim understanding, discontinuation of crime, attempted crime committed, stress and so on; on the other hand, can be banned or restricted probation crimes or criminal type, in addition to the provisions of existing recidivist shall not be suspended, the supplementary provisions for intentional homicide, rape, robbery, human trafficking, underworld crime and drug trafficking and other crimes of a serious nature, types, and habitual criminal group or mob crime ringleader, application should be limited to probation. In addition, the legislation "is no longer a danger to society" this condition should be combined with the pre investigation of personality assessment, the judge can only according to the external characteristics of the circumstances of the crime and the criminal case that the probability of criminal, so based on standard refinement of probation, the probation sentence of personality the survey materials reflected the situation, decide whether to apply the probation into basis.
   
(two) should be a suitable program of the probation rules.  
    The local people's courts in our country whether probation in addition to the supervision of the people's Procuratorate, no other supervision organs, so our criminal law should add rules applicable procedures of probation, the probation of discretion, the procuratorial organs and the public security organs of the people's court say, social participation are placed under the sun, now the author proposed some suggestions:
First of all, to improve the transparency of the probation application. Every sentence probation cases, judges should the circumstances of the crime, crime, social influence, such as subjectivity in the judgment in all directions based on objective facts of the argument, with the public security organs, the prosecution and the victim of the views, in the legal criterion the evidence cited analysis of suspension for the reason, put an end to black box operation.
Secondly, take effective supervision and restriction mechanism. Leaders at all levels should attach importance to the trial court probation cases, make supervision measures on probation cases, take various forms to strengthen management, strengthen supervision. We must strengthen the case supervision, guidance and supervision, to ensure that the case quality, also want to strengthen the macro management, quantity and quality to effectively control the probation cases. Not only should accept the supervision of the procuratorate, but also take the initiative to accept the supervision of the NPC and its Standing Committee, the role of the institute the trial supervision tribunal functions, regular review of probation cases, found time to correct the problem.
Finally, add the probation hearing system. After trial, collegiate thinks defendant can apply probation, probation hearings shall be held. Introduction of probation hearing system, make the connection with the case, the public prosecutor, the victim and the defendant investigation personnel units, schools, community management staff, the villagers' committee to participate in the people can fully express their opinions and suggestions. Because of them and the closely related to people's daily life, the usual performance and even the basic situation of crime are more understanding, the defendant can apply probation advice also objectively, their opinions and suggestions as the reference probation, probation can improve the objectivity and basis. Probation hearing in different places from the defendant area, representing different views, they can in the premise of legal responsible, in accordance with their wishes to comment, it may be reasonable to say, greatly ensure procedural fairness, which can ensure the substantive justice, the judge the referee made more objective and fair, and it can reflect the public opinion. Thirdly, to respect the citizen's right to know, is conducive to the investigation of probation. On the one hand, through probation hearing, the defendant in the jurisdiction of citizen know the defendant probation and not reason, greatly respected citizen right; on the other hand, it is good to stimulate the enthusiasm the defendant unit or the basic level organization, to consciously participate in the investigation of the probation in order to change the past, the probation inspection is not good executive predicament, the probation system is beneficial to improve. The probation hearing procedure should be the following aspects:
(1) participants. Including the collegial panel, case prosecutors, public security organs jurisdiction police station of the police, the victims and their families, and their families, the defendant, the defendant units on behalf of unit, school, neighborhood offices, village committees and other relevant personnel. The above personnel in addition to the public prosecutor, is not legal in the people, whether they are willing to accept the invitation to participate in the hearing of the court has no legal guarantee, whether to participate in the hearing shall be by its own decision, because the evidence is not the legal obligations of the defendant is probation. The author thinks, the person does not need fixed pattern to participate in all cases, according to the need, the key personnel case to presence, the victim, the defendant as injury cases unit and domicile management personnel to appear in court, prosecutors can seek their views, investigation personnel and other relevant personnel, if not present, can be in the form of a written feedback. Method of hearing can be flexible. But the hearing personnel must be with the defendant "relevant".
(2) the content of the hearing. Should focus on the defendant's criminal plot, repentance, personal, family, community environment, during his inspection tour of duty can be effectively carry out verification, and to confirm the criminal probation examination supervision responsibility period can implement.
(3) the process of hearing. First of all, by the support of probation; secondly, agree or disagree opinions issued by the parties, and can provide relevant evidence materials. When necessary, the judge can initiate the investigation, and the investigation results in open court; thirdly, the defendant make a statement, that of his probation attitude and during the investigation of the obligation to implement etc..
(4) the end of the hearing. After the hearing, the collegial panel shall be according to the views of all parties, make suitable or not applicable probation sentence.
 
(three) we should perfect the probation contents, adding protective provisions. According to the criminal law issued provisions, ring the content is generally divided into two types: the first type is only required but comply with the obligations in the probation period of probation, embodies a kind of supervision, management and control, such as the Russian Criminal law. Another type is that the supervision over probation, but also to help guide, namely foreign usually applicable "Probation" system, such as the British and the French Criminal law. Learn from foreign probation system, summing up the past experience in judicial practice, improve the probation contents, to pass legislation to make supervision more comprehensive specific hand, such as a ban on probation in some places; must accept the drinking, drug treatment measures and some operable and burden of regulations, the probation the test could reach the expected social effect. On the other hand, to change the content of the study only focuses on the supervision and management and not on probation practice necessary help and protection. Law should make clear stipulation, declared probation criminals with his unit or the basic level organization shall cooperate with the public security organs on probation, and actively create conditions for probationers assigned to suitable jobs, protect their legitimate interests, their life, learning, employment help. In the test period has not been deprived of political rights on probation, enjoy the right to vote, copyright, copyright and the right of freedom of speech, other civil rights still has the right to employment, welfare rights and the rule of law.
(four) should take the nature of probation as a penalty execution system. It can not only with the commutation system and the surrender of the system to achieve the organic unity, but also in line with the international trend. First of all, the provisions of Article 78 of criminal law in our country: "sentenced to public surveillance, criminal detention, fixed-term imprisonment, criminal, during execution, he conscientiously observes prison regulations, accepts education and reform, shows true repentance, or performs meritorious services, can the commutation; heavy Dali power, should be reduced." through this platform, the content can be seen, the criminals only in a "penalty" may apply during the commutation. If the probation as sentencing, probation is "impossible" commutation of punishment, even during the period of probation probation with "period" in crime in criminal law enforcement conditions. This is not conducive to encouraging the probation of positive transformation, which is not conducive to the realization of special prevention purposes. On probation itself, probation is already decide whether penalty, penalty is sentenced to punishment, has been determined, the method of execution of punishment to make way, choice, therefore, the probation shall belong to the execution of penalty and non penalty category.
Secondly, give full play to the surrender of the system function has also requested the probation system as a penalty execution system. The surrender in China s criminal law is divided into general surrender and special surrender. The former refers to the criminal crime later surrendered, truthfully confesses the crime behavior; the latter refers to the coercive measures of criminal suspects, defendants and is serving a sentence, the confession of the judicial organ has not grasped my other crimes behaviors. If the probation as a "non - executive said" in the probation period, the probation is difficult to set up. A molecule, declared probation personal freedom is restricted, there is no "premise surrendered to surrender", so can not be applied to general surrender rules; two, if you think the probationer no penalty is executed, then the probation period is not the "prison", is inconsistent and special surrender "in the penalty" during the execution of this condition, therefore, even if the probation during the probation period the confession of the judicial organ has not grasped myself other crimes, nor the establishment of the special voluntary surrender. This is clearly not conducive to encouraging the probation is not conducive to play the surrender, surrender of the system function. The main academic point of view that the criminal law, the criminal provisions of the second paragraph of Article 67 of the criminal law in prison including probation, the probation exclusion is not scientific in the voluntary surrender system. The practice of criminal law, the probation also recognized the exclusion is not scientific in surrender body. The Supreme People's court "on the treatment of voluntary surrender and meritorious service for the explanation of the application of law" provisions of article second, according to the provisions of the 2 paragraph of Article 67 of the criminal law, the coercive measures of criminal suspects, defendants and has been sentenced criminals, the confession of the judicial organ has not grasped the crime, and the judicial organs have or judgment determination of crime belong to different crimes, to surrender. It is clear that the judicial interpretation of the criminal law is the 67 section 2 "is serving a sentence" interpreted as "has been convicted criminals". The spirit and the Supreme People's court "for commutation, parole provisions" case specific application problems of law spirit is consistent, namely that probation execution is the execution of punishment, that is to say, the judicial interpretation of criminal law is the declaration of probation is the penalty begins. To sum up, not only the judicial practice need to probation as the execution of punishment, but also the objective requirement of various institutional coordination of criminal law.
(five) on improvement of China's probation system, can also try to set up specialized agencies of the probation. At present, China's probation agencies is the public security organs. The public security organ for law enforcement and judicial organs in China, also can undertake the management and supervision of probation, but at present in China's rapid economic development today, various social contradictions have become increasingly prominent, the public security organs of the heavy task, in addition to the fight against crime, but also bear the fire, traffic management, foreign affairs, public security, household and other activities. In addition, comprehensive law enforcement cases, the police also heavily involved in numerous non police work, such as collecting taxes and levies, planning, government departments, clean up the city housing demolition has with the industry and commerce, tobacco, medicine etc.. So, our task of the public security organs are very diverse, which would cause the relevant work quality probation effect. The present situation of probation work, public security organs in the flower of the energy is limited, the work is not ideal. Therefore, we should be in each prefecture level city (area) the establishment of an independent committee of establishment of probation, probation in each county bureau (Branch), all levels of personnel, finance, examination are directly under the central government. Set up a special probation system, one can effectively achieve the probation, and provide help and protect the necessary part of the probation; two is to put forward suggestions on court probation, so justice, court probation supervision in the current, our country has no foreign regulations on probation hearing system, set up a special probation system is the objective requirement for the realization of judicial justice, but also improve the must of the probation system in china.
 
Four, not only has the great practical significance of probation perfect, but also have great significance for the development of criminal law and legal system of our country. Probation as an important legal system, it is designed to encourage first-time juvenile crime, such as light, small crime people start with a clean slate to social harm system. Firstly, the applicable conditions of probation, probation is applicable procedures of perfect regulation and enforcement content or the establishment of specialized agencies to implement probation probation judicature system can give full play to its purpose in practice, realization of transforming criminals task. Secondly, through the determination of the nature of probation, the probation system can make and commutation, surrendered to the system to realize the harmonious, embodying the principle of equality of criminal law, promote the comprehensive development of criminal law.
 
Reference.
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