Study On Misdemeanor

Based on the classification of crimes,misdemeanor,which is opposed to “felony crimes”,refers to a type of crime,which behavior is socially harmful but has less severe consequences,should be punished lightly according to the law.Depending on the general understanding of China's criminal law theory and its practice,it is currently advisable to distinguish misdemeanor and felony crimes by three year's imprisonment,in other words,all crimes which are punished as imprisonment within three years are considered as misdemeanor,whereas other crimes are felony crimes.Meanwhile,according to both of fast-track trial procedures for criminal cases in 2014 and pilot projects about leniency on admission of guilty and acceptance of punishment in 2016,which are enacted by The Standing Committee of the National People's Congress,the boundary between misdemeanor and felony crimes should be limited within one-year imprisonment in the future.However,for a specific crime,there may be overlapping of misdemeanor and felony,that is to say,a certain offence may be classified as a misdemeanor or a felony,which must depend on statutory penalty range of real violation.And some of the crimes which are determined to be misdemeanor or to be felony must be relating to the provisions of the criminal law.From the point of our country's current situation,it is necessary to constitute misdemeanor system since there is no systematic division of crimes between misdemeanor and felony in China's criminal law before.Although it possesses two sides to constitute misdemeanor system,its advantages generally outweighs its disadvantages.Therefore,from the perspective of the social reality of our country,it is rational to constitute misdemeanor system.To constitute misdemeanor system,the reeducation-through-labor system,which was accepted by the criminal law before and the other crimes,which have the same strength such as deprivation of personal liberty,should all be incorporated into the criminal law.To establish a misdemeanor system is the necessity of perfecting the criminal law system,of fulfilling the commitments on Safeguarding Human Rights to International Convention,of building honest society,of guiding moral roles,of handling risk society and primarily of realizing security,order,and liberty.It is reasonable to involve the main contents of the reeducation-through-labor law and the behaviors,which is partially applicable of deprivation of personal liberty in Penalties for Administration of Public Security,and which is also overlapped with the content of Criminal Law into the misdemeanor system in the construction of misdemeanor system.Furthermore,the historical distinction between misdemeanor and felony supplies the basic legal thoughts for constitution of misdemeanor system.And “The Ant Colony Theory” localized from “The Broken Window Theory”,that is,a type of anticrime theory which can be precautionary beforehand,can also become the theoretical foundation of misdemeanor system.Moreover,the concepts of misdemeanor and felony crimes were originally adopted in the Chinese criminal law norms and the criminal law theory community had gradually formed a consensus on China's construction of a misdemeanor system.In reality,the amendment to the criminal law has already begun the practice of misdemeanor legislation.It is also a manifestation of much attention to misdemeanor paid by lowering the crime's incrimination criteria and by expanding the scale of crime.Therefore,there are realistic basis and feasibility for constructing a misdemeanor system in China;meanwhile,misdemeanor legislation abroad can also provide a useful reference for China's misdemeanor legislation.In theory,the concept of crime should be redefined meanwhile,the principle of legality and rational principles should be followed.In light of the actual situation in China,the scope of misdemeanors should be defined,and the crime scope for misdemeanors should be reasonably delimited.We should uphold the following ideas: shifting from “more attention to the felony and less attention to the misdemeanor” to “equal attention to both”;shifting from “more attention to penalty and less attention to protection” to “respecting and protecting human rights”;shifting from “punishing and preventing simultaneously” to “focusing on prevention and mainly on correction”;and shifting from “justice tempered with mercy” to “emphasizing mercy”.We should adopt a criminal policy with mercy for misdemeanors and should take the consideration on the application of non-custodial punishments and semi-custodial punishments to the misdemeanor criminals in order to avoid the imprisonment model which could bring about difficulties for the criminals in adapting the society again and even could cause the negative effects such as “Cross Infection” and “Even Worse”.The penalties for misdemeanor should follow the principles such as “Giving priority to education and supplemented by punishment”,“Pre-correctional and Educating the public”,“In principle,to be lenient and for exception,to be strict”,and should also follow the principle of non-penalty sanction works as substitution.As for the specific options,the following four-level sequences should be obeyed respectively: from heavy to light,that is,the first,short-term imprisonment penalty and the penalty restraining liberty: the fixed-term imprisonment penalty,the criminal detention,the custody and the surveillance;the second,the property penalty: the fine penalty;the third,the non-penalty sanctions: the dismissal from office;the occupation prohibition,the qualification deprivation,the revocation of honor and the punitive damages;and the fourth,compulsive education measures: compulsory participation in “qualified citizen” quality training,compulsory participation in obligatory public laboring in communities,and giving preaching tour which is based on one's own criminal conducts.It is necessary to set up the elimination of criminal records to counteract the adverse effects to the offenders.The efficient procedures for misdemeanors must be constructed under the guidance of realizing the legal value such as balancing justice and efficiency,and meanwhile balancing the superiority of human rights protection and the limitation of public power.