Research On The Construction Of Misdemeanor System In China

Since China's criminal law was comprehensively revised in 1997,in more than 20 years,the legislature has adopted amendments to respond to society's expectations of criminal law and penalties.In the process of gradual revision of the criminal law,stricter legal networks and criminalization of illegal activities have become a significant development trend.With the development of society,the crime situation and the structure of criminals have changed.The number of violent crimes that seriously endanger social security has declined,and the number of crimes of relatively minor nature and circumstances has increased.Adapting to this changing trend,building a minor crime system with the spiritual core of the criminal policy of combining leniency and strict,which can more accurately identify minor crime cases and minor offenders,realizing the classification of penal allocation and criminal treatment has become an urgent need for judicial practice,and it is also an integral part of promoting the modernization of the national governance system and governance capabilities.From a global perspective,many countries,including civil law systems and common law systems,have stipulated the division of felony and misdemeanor in their criminal laws.Compatible with the misdemeanor system in the substantive law,various countries have seen a trend of mitigation and diversification in their misdemeanor punishment mechanisms,and have established corresponding special handling mechanisms in the criminal procedure.With the continuous development of society,criminal policies in Western countries have also undergone a process of adjustment,and gradually formed a "light and heavy" criminal policy.In terms of "lightness",it emphasizes the decriminalization and non-penalization of legislation,the socialization of penalty enforcement,and the lightening of criminal procedures.In terms of "heavy",it emphasizes more severe criminal policy mediation for crimes with serious crimes or more subjectively malignant crimes.China's criminal law does not stipulate a classification system for felony and misdemeanor,but whether requirements of the leniency and strictness criminal policy,or the reality of the crime situation in recent years,requires the establishment of special principles and mechanisms for the handling of misdemeanors.At the same time,the criminal policy of " adjust the severity of penalty according to social conditions" in the history,the embryonic form of the classification of crimes related to the different treatment of serious crimes,the different penal system,and the special execution and handling procedures for minor crimes,provide cultural soil for the construction of misdemeanor system.The reform of the leniency system for confession and punishment have provided the system soil and practical experience for the construction of the misdemeanor system.Therefore,it is necessary and feasible to construct a misdemeanor system in our country,and it is a rational choice.For a long time,the criminal law in our country has always emphasized the punishment and deterrence function.The embodiment of this concept at the legislative level is that the criminal law of our country adopts the "qualitative + quantitative" model for the definition of crime,and the nature and circumstances of the violations that have not reached a certain degree of seriousness will not enter the scope of criminal law evaluation in the past.Therefore,it is necessary and appropriate to adopt isolation measures for criminal defendants who have committed serious crimes against society in the past.However,with the development of society,the criminal situation has changed,and the public's sentiment and tolerance for unethical and deviant behaviors have also changed,and the expectations for the functions of criminal law have also changed.If treating the minor offenders and their families from the past perspective,demanding deprivation of liberty for the minor offenders,and discriminate and alienate the minor offenders who have served their sentences and their families,it will inevitably make it difficult for the minor offenders to return to society.This not only fails to meet the actual needs of the treatment of misdemeanors,but also brings about social confrontation issues.Therefore,the perception of the functions of the criminal law,the characteristics of minor offenders,the function of minor punishments,and the mode of litigation procedures for misdemeanors has been greatly changed,which has promoted a newer and closer approach to the realities of social life.Thinking of handling crime cases has also become the conceptual prerequisite for building and operating a misdemeanor system.Constructing a misdemeanor system not only involves the implementation of the principle of legality,the improvement of penalty allocation,and the connection with criminal procedures,but also the improvement of the existing misdemeanor handling system and the construction of new system,is a process of separation and selection.In order to achieve the goal of more accurate identification of misdemeanor cases and better treatment of misdemeanors,the division of the scope of misdemeanors should adhere to the principle of legality,the principle of proportionality,and the principle of economy,and conduct research on the basis of the criminal circle defined by the criminal law.Compared with the statutory penalty form of determination mode adopted by western countries,although the concept and scope of misdemeanor are not clearly defined in the criminal law of our country,in the course of legislation and judicial practice,it has actually summarized the proposed penalty model for crime identification and definition.Based on legal provisions,this model is pre-judgment by judicial organs using judicial experience within the framework of legal provisions,respecting the defendant's right to choose procedures and correcting deviations through relief procedures.Since this model is both legal and discretionary,it is more suitable for linking up with current laws and regulations in China,and it is more suitable for the identification and handling of misdemeanors under the actual circumstances.Under this model,the misdemeanor may be sentenced to less than 3 years of imprisonment in accordance with the law,and it is more appropriate to discuss the construction of the misdemeanor system in the context of our country.Through practical observation,it is found that the problem of "misdemeanor not minor" has appeared in the handling of misdemeanor cases.The problem is not only caused by the allocation of penalties in criminal legislation and justice,but also by the mechanism of handling procedures for misdemeanor cases and the superposition of internal responsibilities caused by criminal acts.In view of the characteristics of the defendants of misdemeanor,in order to achieve a better crime governance effect,a review of misdemeanor penalty allocation based on the principle of relative balance and cost-effectiveness reveals that the allocation of short-term free punishment is still in the core position of the light penalty system,the unsatisfactory role of fines,and the inaccurate application of probation.In order to realize the coordination of the functions of prevention and deterrence of misdemeanor punishment,the accuracy of the application of probation,the effective allocation and application of fine penalties should be improved,and the allocation and application of qualification penalties should be improved.In terms of procedural mechanism,the governance of misdemeanors needs to further realize the separation of complicated and simple cases in the criminal procedure,explore the establishment of a punishment order procedure and the criminal record elimination system for misdemeanors.By constructing multiple and rapid criminal case handling procedures,realize the diversion of complicated and simple criminal cases,help minor offenders return to society and eliminate social rifts.In addition,with the development of the legal system,defendants who commit misdemeanors will not only bear criminal responsibility for their criminal acts,they may also face penalties from administrative departments,compensatory punishments required by the infringed,and the public interest compensation liability required by the agency or organization stipulated by the law.Environmental crime is a more representative example.In the vision of environmental crimes,the defendant may also need to bear criminal liability,administrative liability,tort liability,liability for public interest compensation,etc.If simply accumulate various responsibilities,it will not only increase the responsibilities,but will also cause social suspicion due to the fact that the defendant's responsibilities are too heavy.Therefore,the construction of the responsibility system should adhere to the systematic integration of crime governance,adhere to the diversification of crime governance and punishment methods,actively explore the application of restorative judicial measures,and encourage the defendants of misdemeanors to voluntarily undertake the restoration of the ecological environment obligations to achieve better crime governance results with smaller penalty costs and social costs.