The Judicial Implement Of The Penalty Moderation

The "penalty moderation" means that, the country should strive to maximize the prevention and control of crime effective, at the least price of penalty. In other words, if there is any other applicable law sufficient to inhibit certain violations and protect the legitimate rights and interests, it is not necessary to consider it as a crime. If there is any applicable lighter penalty enough to prevent a crime, we could not apply the heavier penalty. If any alternative punishment method could be used, the imprisonment penalty should be thrown away.The first chapter is "the Basic Theory of the Penalty Moderation". By introductions to different opinions of a large number of internal and external scholars about the theory, the author considers that there is no essential difference in the various concepts. If we spend too much time on it, no practical significance would come into birth. It is the implication and essence of the theory that is really valuable to be discussed seriously. And we have to discuss what the theory is based on in order to get a deeper understanding of its meaning and substance. As a rational spirit or principle to limit criminal regulation and regulatory efforts, the relation between criminal legislation and criminal justice has to be involved in the research. For that, the author views that the criminal moderation depends first and foremost on the criminal legislation. If there is no legislative moderation, it is difficult to realize judicial moderation. However, that does not mean moderate legislation is bound with judicial moderation. On the contrary, it is possible that moderate legislation would be completely invalid because of no judicial moderation, but judicial moderation could repair stringent legislation in a certain extent.The reason for committing a crime is determined by many fators, including society, environment, individuals and so on. Therefore, the state formulating the criminal policy or the justice department during the judicial proceeding, should not punish crime simply out of revenge purposes. On the contrary, we must fully protect the interests of the perpetrators. The criminal justice always needs keep restraint, rational and prudent. Whether judicial activities could maintain restraint and rational and prudent is constrained by various factors, including rational judicial officers and environment. In the Chapter Two, the main points include that criminal justice personnel must have a rich social experience and the basic concept of the modern criminal justice, as well as a correct understanding of the social mainstream values and common sense. Meanwhile, they should have a rational attitude towards the crime and the penalty. The standard for a judge must be raised for those criminal judges who deprive one’s property, liberty or even life at will. As a modern country with rule of law, the judicial environment should make a basic bottom line. It is that the justice should own the authority at least, that contempt of the justice crime should be established to accuse those extremely contemning justice behaviors, in order to pass a clear signal to the society that the justice could be challenged, but never contemned. To apply the principle of exhausting judicial remedy to law-related complaint letters and visits-the court is no longer in charge once the case has been trialed via three different level courts.Based on the present judicial environment, it will face triple obstacles to implement the criminal moderation. They come from within the justice system or external factors, and not all of them could be resolved. The Chapter Three makes a detailed discussion of these obstacles and how to avoid them. The author believes that the internal barriers include three aspects:the justice system’s constraint mechanisms relations obstacles, the judicial internal regulatory obstacles and the judges’realistic thought disorder. The external obstacles also include three aspects:the irrationnal media monitoring tendency obstacles, the victims’irrational requirements obstacles and lost of trust for justice system. To overcome those obstacles, the author put forward his own solutions as following:positioning the Procuratorate in the administration to prosecute on behalf of the government; stripping the anti-corruption bureau out of the Procuratorate and setting up independent institutions like the Hong Kong Independent Commission Against Corruption (ICAC); excluding the procuratorate’s indictable success rate, the innocence rate and the protest success rate and those indirectly or directly irrational assessment indicators affecting court rational trial; making the relation between the lower court and the superior court clear, and no irrational assessment indicators. As for the judges’thought disorder, any way of thinking, no matter mechanical or negative or dogmatic thinking, all comes from lack of job security in the system. The system did not give the judges enough security, so that the judges can not simply consider the facts of the case and related law to judge a case independently, as they have to give more consideration on how to "play the game" safely. Therefore, to dissolve the judges’thought disorder, the key is to improve the job security system of our judges. As for lack of trust for the justice system, the author holds the opinion that it mainly depends on whether the judicial results and process together with the judges in the justice system could be trusted by the common.To achieve the criminal moderation finally, it relies on the criminal reconciliation, non-custodial sentence, the death penalty limitation and other methods. Whether those methods are reasonable or feasible, directly relates to the ultimate effects. In the Chapter Four, the author makes a practical analysis of the mentioned methods, including the application’s status and confusion, before corresponding suggestions are proposed. It mainly includes following points:enlarging scopes of the compromise case to all cases with victims; conferring the withdrawn rights of reconciliation cases to the public security organs; make conditions of probation specificly divided into general situations should be considered for probation, could be considered and should not be considered; improving the community corrections system; restricting the death penalty could not be hurry, or else we may be caught in a dilemma and ultimately endanger the realization of the criminal moderation; passing the right of approvatiion down to the court above the drawing court, it means that cases from the grass-roots court should be approved by the intermediate court, cases from the intermediate courts be approved by the superior court, and the superior courts’cases be approved by the supreme court.Although the author holds the opinion that it is necessary to maximize the criminal moderation as possible via criminal justice, it does not mean there is no limitation for implementing the criminal moderation. The last chapter deeply studies "the Justice limitation of criminal moderation". The author believes that a clear bottom line should be set for the criminal moderation. The bottom line includes two aspects. One is the bottom line of legal effect which the judges pursue, and the other is the bottom line of social effect. As for the first line, in my opinion, besides unable to break the stipulated law,"leniency" is also the proper meaning of the criminal moderation. As for the second bottom line, the author then sets two bottom lines, one is the social effects impact, and the other is the evaluation line of the social effects. And its core content is, in any case, the "moderation" can not encourage crime.