Study On Probation Application

It is generally considered that probation system dates from an Americanperson-Augustus, who introduced the "probation" term into the Criminal Code forthe first time, forming the modern probation system of seeking guarantor from thecourt to make the court release and supervise offenders conditionally. From the dateof its birth till now, although the spiritual core of the probation system has nosubstantive change, there exist much progress and many changes in the the contentand components of it with the progress of era and different applicable nationalconditions. In recent years, especially since the issue of “Criminal Law AmendmentVIII”, Chinese probation system has made great progress both from the legal andpractical perspective. In terms of the legal dimension, the prohibition order,community correction, etc. have been added, which greatly enriches the content andprocess of probation application; while in the practice field, with the full swing ofcommunity correction, the supervision and execution of probation are also morecomprehensive and have detailed legal basis. But what is relatively pitiful is thatalthough our judicial practice of probation has entered into a higher stage ofdevelopment, the corresponding theory of probation relatively lags behind, recentresearch articles specifically relevant to probation are relatively poor, and researchresults are no very rich, which cause the determination of basic concepts andarchitecture of theory systems of existing probation application system can not meetthe status quo of probation practice today. Therefore, many new cases and problemsof probation generated can not be resolved, severely restricting the right andreasonable application of probation; the perspective of many relevant researches tothe probation application are more prone to research of problem. If a specificproblem is studied under the premise of without a full discourse environment, theresult is that stopgap measures are taken in separate way and there may even beconflicts among so many solutions. Aiming at the shortcomings of the abovetheoretical research, the author tries to summarize comprehensively Chineseprobation application after the enactment of China’s The Eighth Criminal Law Amendment, combining the existing probation application theories with newpractices to contribute to building a unified concept and theoretical system ofChinese probation application.Therefore, this paper starts from the most basic legal nature of probation toexplore the nature of the probation system. The probation is defined as theimplementation of criminal responsibilities by means of comparative research and onthis basis, the basic spiritual core to probation under the new situation will beselected and the spiritual core to probation will be interpreted from the three anglesof justice, humanity, order to provide an overall direction and guidance for probation.On the basis of a series of basic concepts’ clarification, basic requirements for theprobation application, namely conditions for probation application, providing clearguidance for probation application can be determined through determiningconditions of probation form and material conditions, as well as the status and roleof a certain victim in the process of probation application. Finally, the variouselements of the probation will be clarified by means of investigating thecorresponding probation executive system and identifying the execution time, theexecution content and other aspects, providing clearer guidance for theimplementation phase of probation.In summary, discusses in this paper starts along the establishment of probationof probation application, which is the probation practice vein. The core concepts willbe confirmed and summarized in the corresponding link, striving to unifying theconcepts and problems independent of each other in the probation application in thesame theoretical basis and the same spiritual core under the premise of which thecorresponding connotation will be determined and conflicts will be resolved,contributing to the practice of probation application under the new circumstances inChina.