Research On The Non-imprisonment Penalty Issues

The non-imprisonment penalty refers to no custody punishments applied to criminals with a light criminal act, slight subjective evil and superficial person dangerousness. eg. public surveillance. In a broad sense, the non-imprisonment punishment should also include the discretion and execution systems of punishment which embody the idea of socialization of penalty execution, such as probation, parole, and temporary execution outside prison. The non-imprisonment is not only a symbol of the progress of human civilization in penalty area, but also an inevitable destination of the mitigation of punishment; many values of the non-imprisonment punishment is superior to the imprisonment punishment, it can not only promote the freedom of human society with humanitarian concern, but also produce considerable social effect with the least amount of penalty; it can not only fully realize the criminal policy of temper justice with mercy, but also promote the harmony of society and the process of the rule of law.The domestic theory and practice of non-imprisonment punishment lags behind the developed countries in Europe and America, but the beginning of community correction at the six developed provinces and cities in2003by the Supreme People’s Court and the Supreme People’s Procuratorate indicates that the theory and practice of China’s non-imprisonment penalty has stepped into the fast lane. But the non-imprisonment penalty in China both in theory and in practice is not very mature, there are still many problems and difficulties. In the changes of punishment concept, the traditional concept of punishment is still more than modern ideas; in the legislation of the non-imprisonment penalty, there exist problems of insufficient punishment, incomplete type, confusing applicable conditions and insufficient individual treatment; in the justice of the non-imprisonment penalty, there are problems of discrimination, low application rate, different standard, the lack of the party participating in the procedure, the loss of synchronous supervision and power restriction, judicial corruption and injustice, heavy administration color, and unreasonable reverse tracing system against judicial executioners etc.; in the execution of the non-imprisonment penalty, more attention to performance than to psychological, more to forms than to effects, separation between sentencing and corrections etc.This doctoral thesis focuses on the basic theory and idea of the non-imprisonment penalty, legislative and judicial problems of the non-imprisonment penalty. Based on the investigation materials of the author and lessons from foreign theory and practice experience, the analyses and studies will integrate theory with practice. By reflecting on the causes of crime, the author puts forward the view of layer-order-integration responsibility. On the basis of expounding and proving its justification and reason, the author designs "Internal Cause Table of Crime" and "External Cause Table of Crime", together with calculation formula and application method. Therefore, the view of layer-order-integration responsibility is not only a kind of criminal responsibility viewpoint that attaches importance to external factors, but also a kind of practice viewpoint. It is a breakthrough in methodology. This thesis tries to carry it out in judicial and execution of the non-imprisonment punishment and designs the "Risk Assessment Table from Important Factors of the Parole Criminal". These risk predictors are divided into predictors before sentence and predictors during execution and predictors during the execution are given the judgment function of recidivism.Simply to put, the view of layer-order-integration responsibility refers whether state and society or behavior of crime should bear the responsibility of different nature and scale for most crimes. State and society should develop good criminal policy and social policy against criminal external factors before crimes and undertake scientific correction and resettlement of offenders after crimes, while the behavior of crime should bear legal criminal liability for criminal internal cause. Therefore, the different responsibilities of the state, society and the perpetrator form a dynamic responsibility layer-order, when the state, society and the perpetrator bear responsibility according to the different amount of each joint liability, it is the layer-order-integration responsibility. The layer-order-integration responsibility is to advocate the state and society to treat the perpetrator and criminal phenomenon correctly, and to enhance the sense of social responsibility from the state, family and the perpetrator together with the approval sense of social public toward the non-imprisonment punishment, and to realize the benefit-maximization of the state, society, perpetrator and the victim. The ultimate goal is to improve the application rate of the non-imprisonment punishment and to reduce crime, and to establish a harmonious and powerful China."The view of layer-order-integration responsibility" is put forward mainly from the periphery of the crime, the penalty and the criminal responsibility, which is mainly from the value and significance of criminal policy and social policy in crime prevention and reduction. It can be said to be a close joint responsibility view between the perpetrator and the state and the society,that is to say, the perpetrator should bear criminal responsibility for his crime and the state and society are responsible to formulate policy and system to reduce the bud factors of possible crime and to make scientific and rational measures to correct and settle criminals.It is the forward and backward extension of the criminal responsibility and it is a national and social responsibility."Layer-order-integration responsibility" is different from the group responsibility which is the lateral expansion of the criminal responsibility and which has a strong subjectivism; while the layer-order-integration responsibility is a rational connection and interaction between different areas and different responsibilities. The "responsibility" in "layer-order-integration responsibility" has two different meanings, which is one kind of inevitable legal responsibility for the criminal and which is a system-policy responsibility for the state and society to understand correctly, treat reasonably and take it actively without mandatory and necessity.This thesis is divided into four parts. The first part is the preface, which introduces the significance of this study, background and methods. The second part is the notion problem of the non-imprisonment penalty, which advocates, based on comparison between the foreign penalty view and our traditional penalty view and reflection on our traditional penalty notion, the humanism notion of punishment and put forward the view of layer-order-integration responsibility. The third part is the legislation problem of the non-imprisonment penalty, which,based on analyzing the main problems existing in Chinese non-imprisonment legislation, puts forward the improvement suggestions of public surveillance, property punishment, qualifications punishment, probation, parole and temporary execution outside prison and designs articles of law in detail. The forth part is the judicial problem of the non-imprisonment penalty, which, based on an overview of the judicial problem of the non-imprisonment penalty, makes an data empirical analysis of the judicial practice of four major non-imprisonment penalty, including public surveillance, fine, probation and parole and puts forward the judicial countermeasures.Due to the limited research and empirical materials together with state secrets involved and other issues, there must exist many shortcomings in this thesis, so beg for experts’ criticisms.