Research On The Article37of The Criminal Law Of The People’s Republic Of China

From the perspective of criminal integration, understanding and application of the article37of the Criminal Law of the People’s Republic of China correctly is closely related twoatypical criminal justice of Crime but not sentenced to a punishment and minor criminal nonprosecution. The article37of the Criminal Law of the People’s Republic of China is sufferingthe embarrassing situation of "theory against practice, theory against theory " when it is usedto offset the penalty, which shows that the article need to be further studied. Along theresearch route of understanding the basic meaning, establishing the theory foundation,Surveying the present situation of application and looking to the future, the speculative,system and empirical analysis are used to Study on the article37of the Criminal Law of thePeople’s Republic of China.Besides the introduction and conclusion, the main text of the paper contains fourchapters.Chapter1introduces the basic meaning of the article37of the Criminal Law of thePeople’s Republic of China. Through perfecting legislation, the non penalty measure is moreabundant by adding the ‘administrative punishment’ and the expressions of ‘Exempt frompunishment is more accurate. The article37of the Criminal Law of the People’s Republic ofChina contains two closely related sections by the ‘but’ apart. The front part is provisions onthe discretionary circumstances of offsetting the penalty. The second part is provisions on thenon penalty punishment.The spirit of ‘The crime plot slight’ is that the degree of culpability crime is so low(corresponding to the extent of penalty crime should be in prison within3years) that nonpenalty is tolerable on the basis of the criminal identification and criminal declared guilty,considering from the angle of legal retribution. The spirit of ‘Need not be sentenced to apunishment’ is that the degree of the dangerousness of the criminal is so low that it is notnecessary to achieve the special prevention by Sentenced to criminal punishment on the basisof the criminal identification and criminal declared guilty, considering from the angle of thespecial prevention. The spirit of ‘Can be exempted from criminal punishment’ is that, thecriminals should be exempted from the criminal punishment when non punishment will notplay a negative effect to encourage others to imitate the crime in the objective on the basis ofthe criminal identification and criminal declared guilty, considering from the angle of the general prevention. The criminal conviction but offsetting the penalty is essentially acompromise of justice, which is on the difficult balance for the compensation of responsibilityand the crime prevention.The article13of the Criminal Law of the People’s Republic of China is closely related tothe Conviction or not. The article37of the Criminal Law of the People’s Republic of China isclosely related to the punishment or not. In addition to the article37of the Criminal Law ofthe People’s Republic of China, there are16articles which is provisions on the circumstancesof offsetting the penalty specifically, but it is difficult to cover all the necessary circumstancesof offsetting the penalty in real life just by the16articles. According to the basic principle ofcriminal law interpretation and based on the substantial justice and judicial sentencingindividualized consideration, if the case do not meet any one of the16provisions, theoffender may be exempted from criminal punishment by the people’s court according to thearticle37of the Criminal Law of the People’s Republic of China when the offender shall beexempted from criminal punishment.In the perspective of sentencing, the article37and the article5of the Criminal Law ofthe People’s Republic of China, which arch holding the "criminal law" article sixty-first ofthe general principles of sentencing jointly, have their own independent sentencing guidancefunction. In the usual division of the discretionary circumstances and the statutorycircumstances, the article37and63of the Criminal Law of the People’s Republic of China,Provide enough room for interpretation for judges sentencing activity reasonably beyond thestatutory punishment specific retained, shall be reduced respectively the provisions of thediscretionary circumstances of offsetting the penalty and the extenuating discretionarycircumstances of the penalty. The criminals of slight crime plot may be exempted frompunishment by the application of the article37of the Criminal Law of the People’s Republicof China. The extension of China’s sentencing contains than the offender was sentenced to apunishment and the offender was not sentenced to a punishment. The process of mitigationof punishment can be promoted by expanding the application of exemption from punishmentand strictly controlling the application of death penalty.Chapter2introduces the theoretical basis of the article37of the Criminal Law of thePeople’s Republic of China. In the rational reforming and improving of retribution andprevention penalty basis, comprehensive view of penalty considering the special preventioneffect is gradually practical and become the consensus. Under the guidance of the comprehensive view of penalty, the people’s court shall be carefully for Sentencing of thecrime. Provisions of the criminal law should be clear, which is the internal requirement of theprinciple of legality. Provisions of the criminal law are relatively clear. Specific provisions ofthe criminal law are beneficial for enhancing the ability to adapt to society. A clear goal ofcriminal law requires the common practice of judicature and legislation. The discretionarycircumstances of offsetting the penalty of the article37of the Criminal Law of the People’sRepublic of China have plenty of room for interpretation. The special cases and substantialjustice of sentencing is required. Accompany with financing the social conditions and publicopinion, Judges should actively and carefully apply the Criminal Law in response to the rapidchanges in modern society when they are sentencing in certain space-time field. Restraint andprudence is the inherent value of modern criminal law. Criminal law restraint includes twoaspects of crime and punishment.The article37of the Criminal Law of the People’s Republic of China is a greathighlight that the punishment should be modest and prudent.The judicial organ shall becautious for sentencing. The idea of People oriented is the controlling strategy and spirit ofmodern society. The idea of People oriented is due to the rational cognition on thephenomenon of crime. The idea of People oriented is the internal needs of the scientificmanagement of crime. In the guidance of people-oriented concept of the fairness and justice,the unreasonable idea that all the crime shall be prosecuted and all the accused person shall besentenced to a punishment should be completely abandoned. For a minor crime, the judicialorgan should have the courage not to prosecute or not sentenced to a punishment. After yearsof practice, the criminal policy of combining punishment with leniency, which is thereflection of social transformation and Several times the hard struggle, is a basic criminalpolicy of our country. On the whole, leniency is the main aspect of the criminal policy ofcombining punishment with leniency. It is a great highlight of leniency of the criminal policyof that the minor crime is not punished or not to prosecute.The comprehensive management policy is proposed in our country after summarizinghistorical experience of social security policy. With the development of society and thecountry, The comprehensive management policy has gradually evolved into a basic socialpolicy. At the national level, the function of the penalty of crime prevention is very limited. Inthe guidance of the comprehensive management policy, our country should pay attention tocrime prevention function of other measures outside the penalty. The criminal power is a kind of very severe disciplinary power. The modern criminalpower is focusing on man’s spiritual discipline. In the framework of the rule of law, it isachieved by the way of the criminals undertaking the criminal responsibility that the criminalpower achieves the goal of spiritual discipline of the criminals. It is essentially a judicialdeclaration of political tolerance that the criminals may not be sentenced to a punishment.Thanks to the invisible influence utility to criminals and to the social security function offlexible construction, the judicial declaration and its influence character by environment tocultivate the social culture of tolerance is essentially hidden brimming in the judicial field ofsocial governance and power operation strategy. Thanks to the compromise of state, crime andsocial public In the issue of sentencing to a punishment or not, it is a compromise of Justicethat the defendant is guilty of a crime but not be sentenced to a punishment.Chapter3introduces the current practice of the article37of the Criminal Law of thePeople’s Republic of China. The empirical research of the article37of the Criminal Law ofthe People’s Republic of China shows that the case which the criminal of plot slight was notcharged is more than the case which the criminal of plot slight is guilty of a crime but not besentenced to a punishment. At present, there are not the legal circumstances of offsettingpunishment in most cases that the criminal of plot slight is not prosecuted or not sentenced toa punishment. If the criminal of plot slight by the judicial organ is to be decided whether ornot to be prosecuted or be exempted from punishment in this case of there is no legalcircumstances of offsetting punishment, the judicial authorities usually consider thiscircumstances of the admission of guilt and repentance attitude, the return of the stolen goods,the compensation for the victim’s loss and the victim’s forgiveness.In this cases in which the criminal of plot slight is not to be prosecuted or be exemptedfrom punishment, the process control are generally consists of a linear process form theundertaker to the judicial committee or the Procuratorial Committee. Difficult cases willgenerally be empowered to superior people’s court or superior Procuratorate.The case investigated by the People’s Procuratorate is controlled by the Strict procedureof the supervision of people’s supervisors and for the approval of the People’s Procuratorate ata higher level before the decision not to prosecute the criminal of plot slight. The cases is notinvestigated by the People’s Procuratorate is controlled by the procedure for the record of thePeople’s Procuratorate at a higher level. The record means that the final decision right. On thesurface, the record procedure is a kind of post hoc nature of the program. In fact, the record procedure is a kind of tacit approval of program.In the judicial practice, the applicable process of the article37of the Criminal Law of thePeople’s Republic of China is often associated with a variety of assessment indicators. In thevarious indexes and constraints, the pressure of judicial organ will shift to the judicial organof the next stage of the proceeding. Based on the consideration of the protection of humanrights, the result of the doubt case should be in favor of the defendant. Under the influence ofvarious index of assessment, the modern concept of no punishment in doubt case are beingsqueezed and even distorted. The invisible judicial knowledge of punishment in doubt casehas been skillfully applied. Some judicial cases of suspected crime has been quietly staged,which is fresh for an outsider and don’t want to be outsider known.Judicial document is an important way of showing the reason of judgment and displayingthe judicial wisdom. The judicial personnel should cherish the judicial reasoning of thejudicial document.Because human resource is not enough, the judicial reasoning of thejudicial document is too difficult, and be afraid of making mistakes, on the issue of thereasoning of the judgment, the judicial documents is very simple and some important reasonis not be said. The judicial reasoning of the judicial document often appears outside a simpleface, inside a complex face.Chapter4introduces the judicial application of the future of the article37of theCriminal Law of the People’s Republic of China. As people’s rational cognition on thephenomenon of crime, the crime control of the overall consideration, the relentless pursuit ofthe mitigation of punishment, and in recent years China’s leniency continued to promote thecriminal policy and social management policy, the article37of the Criminal Law of thePeople’s Republic of China is expected to be applied more and more in the future judicialpractice. In the future of the judicial application of the article37of the Criminal Law of thePeople’s Republic of China, the theoretical differences is still to be sutured, the provisionscited in the judgment is still to be unified, and the protection of the rights is to still to bestrengthened.The theoretical dispute of the judicial application of the article37of the Criminal Law ofthe People’s Republic of China is actually the dispute of discretionary function for offsettingthe penalty. It is not enough to deny the discretionary function of offsetting the penalty andthe legal value that the legal terminology is not clear, the content of the provision is not aboutsentencing, the applicable program of the provision is inconsistent, and the applicable consequence of the provision is negative. We can achieve good effect of Justice by the way ofstrengthening the sentencing reasoning, strengthening the case guidance, and strengtheningthe judicial supervision rather than obsessing over the program control.When the case has the statutory circumstances of offsetting the penalty, which hasprovided the legal basis for offsetting the penalty, the article37of the Criminal Law of thePeople’s Republic of China should not be cited in the judgment. When the case has not thestatutory circumstances of offsetting the penalty, the article37of the Criminal Law of thePeople’s Republic of China should be cited in the judgment. When the case has the statutorycircumstances of offsetting the penalty and the non penalty punishment of the article37of theCriminal Law of the People’s Republic of China is used in the case, the article37of theCriminal Law of the People’s Republic of China also should be cited in the judgment.From the protection of the rights, we need to strengthen the right of the Person who isnot to be prosecuted when he refuses to accept the decision, which is conducive to theprevention of that the decision of not suit is abused by the People’s Procuratorate and thedecision of not suit is become compromise tool in the doubtful case. We can learn from theprovisions of that the full protection of the right of the Minor non prosecution of additionalconditions. The right of the suspect should be fully protected that the case was brought tocourt for an acquittal.