On Clemency And Its Procedures

The system of clemency traces back to ancient times. Some countries under the rule of law have been applying the system to this day. Clemency started in China from time immemorial, and positive practice was run on seven occasions from 1959 to 1975. Nevertheless, the recent three decades witnessed clemency in a state of“hibernation”in China. Therefore, to probe into the justifiability of clemency, compare ancient and modern systems of clemency in China and some other countries, and present proposals for the improvement of China's clemency in line with its current legislations and practice for the purpose of promoting the development of China's system of clemency are of practical significance for reflecting public feelings and humanism, alleviating social conflicts, especially demonstrating the human rights protection of the accused and the condemned criminals. This dissertation falls into seven chapters as follows:Chapter I,“Clemency and Relevant Categories.”Starting with the definition of clemency and the dispute over the ownership of the power of clemency, this chapter states that the power of clemency in modern society is exercised in concerted efforts by different power structures and that the right to the decision of clemency and the right to the application for clemency serve as a constitutional power and a constitutional right, respectively. Besides, on the basis of the analysis of the statutory types of clemency and their development, the chapter gives a brief introduction to the substantive and procedural problems of clemency, pointing out that the substantive problems regulate the timely exercise of and rational restrictions on the substantive powers and rights, whereas the procedure for clemency can not only guarantee the exercise of substantive rights but also have its intrinsic value, such as counteracting the weaknesses of the substantive problems of clemency, and ensuring the clemency applicant's effective participation in the clemency proceedings. Eventually, this chapter dissects the dissimilairities between clemency and other such similar systems as parole and the commutation of sentence.Chapter II,“The Justifiability of Clemency.”This chapter, which gives a brief assessment of the argument over the retention or abolition of clemency both in China and abroad, notes that the implementation of clemency, which resembles a double-edged sword, shall be based on consummate substantive and procedural laws to the effect that the abuse of clemency can be avoided. Also, by means of systems analysis, the chapter explores the justifiability of clemency from the angle of ethics and sociology, clarifies the constitutional basis from the perspective of the separation of powers, the rule by law and human rights protection, and expounds the grounds for the criminal policy in terms of light penalty and humanism.Chapter III,“Exploration and Comparison of Clemency in Ancient and Modern China.”This chapter makes a systematic exploration of the emergence and evolution of ancient China's substantive and procedural issues of clemency, especially such substantive problems as the types, scope and effectiveness of clemency, as well as such procedural problems as the start of clemency, and the production and promulgation of the decrees for clemency during the Han (206 B.C.—A.D. 220) and Tang (A.D. 618—A.D. 907) dynasties. Also, the chapter briefly explains the substantive and procedural issues pertaining to the current clemency on the Chinese mainland and in the Taiwan region. Finally, the chapter makes a comparison of China's ancient and current clemency.Chapter IV,“Foreign Clemency Exploration and the Comparison of Clemency Between China and Foreign Countries.”Through a comparative study, this chapter gives a brief historical review of the clemency in some countries belonging to the Continental Law System and the Anglo-American Law System, and introduces the substantive and procedural problems of their modern clemency, especially such issues as the legal basis of the U.S. pardon, its future trends, and the control by the Congress, along with some substantive problems (such as the types and effectiveness of pardons) and procedural problems (such as the application for pardons, relevant investigations, the proposals or decisions on pardons, and the security classification of pardon-related information). In addition, the chapter makes a comparison of the clemency-related legislation models between China and some countries belonging to the two law systems, and their substantive and procedural issues on clemency in expectation of the consummation of China's clemency.Chapter V,“Clemency and International Conventions.”This chapter, focusing on international crime clemency and conventions in relation to clemency, tries putting forward the substantive and procedural elements for international crime clemency, on the basis of the probe into the necessity of international crime clemency. Moreover, the chapter introduces the clemency stipulated in some international conventions, and suggests drafting guidance documents in light of the Rome Statute of the International Criminal Court for the purpose of regulating the system of clemency. In conclusion, the chapter makes a brief comparison between the clemency in China's legislations or legal practice and that in international conventions.Chapter VI,“China's Current Clemency and Relevant Problems.”Based on China's current laws pertinent to clemency, as well as the practice and backgrounds of clemency, this chapter analyzes the existing clemency-related problems to be settled in China. It points out that China's present clemency is crudely stipulated and lacks operability thereby. Owing to such factors as the serious situation of public order over the past decades, the insufficiency of relevant theoretical research, and the public concept of heavy penalty, the practice of clemency has come to a standstill in China. Furthermore, China has no supervision mechanism or clemency affairs agency to ensure the operation of clemency.Chapter VII,“Proposals on the Consummation of China's Clemency.”With a view to China's current problems involving clemency, this chapter uses for reference the clemency-related legislations and practical experience both in ancient China and in modern foreign countries, and gives the overall proposals on the consummation of China's current clemency in light with China's national conditions, that is, to establish the principles for the practice of clemency, the supervision mechanism, the clemency board and a complete system of clemency-related legislations. With respect to the specific proposals on legislations, the chapter holds the view that the stipulations on“Clemency”and the“Procedure for Clemency”shall be supplemented in the criminal law and the criminal procedure law, respectively, in the hope of enhancing the operability of clemency in China.