| The exchanged penalty system have been established in the Penal Code of many countries and regions and plays an important role in judicial practice , but the current criminal legislation of our country holds denial attitude towards the exchanged penalty system. This paper tries to make certain analysis on the feasibility and necessity of the establishment of the exchanged penalty system in our country, and based on the analysis advocates of the exercise of this system will be hold according to the current penalty system of our country. At the same time, this paper puts forward to propose of the specific design of the exchanged penalty system in order to make contributions to the establishment and improvement of the system in our country.This paper has five chapters, which are as follows:The first part will give an explanation of concept of the exchanged penalty system, which is the basis for the understanding and research to the issues.The author will compare different opinions about the exchanged penalty system around the world and then analyze these opinions,detailed the concept,then define it。 Legislation model all around the world will be introduced following the description of the exchanged penalty system.The second part is the demonstration of the necessity of the exchanged penalty system in China。This article mainly carries on from six aspects elaborated that,the demands of the difficulties in the execution of fine penalty,the demands of the present defects in the short-term punishment,the demands of the solution of the negative function and failure of penalty system,the demands of principals of benefit and economy of criminal law,the demands of the execution of penalty individually and the demands of solution of the defects in execution of fine penalty of teenagers。According to detailed elaboration,we can know the necesity of the construction of the exchanged penalty system based on our present penalty system。The third part is contributed to the argument of the feasibility of the exchanged penalty system in China from theoretical foundation and realistic necessity two aspects respectively. The author will make a detailed discussion about the theoretical foundation from four aspects, which are justice, humanity, humility and reality respectively. The analysis of the realistic necessity of the exchanged penalty system in China will also set out from two aspects, one is the experience of other countries and regions which should be learned for the well execution of the system in these areas, the other is the solid historical foundation of this system in our country which gives good environment for its establishment.The forth part,the author puts forward detailed designation of the exchanged fine punishment in China。First of all,analyse legislative model in foreign countries and propose detailed advice about which model to choose and how to design,then the author puts forward the detailed designation according to the analysis。Penalty punishment should be treated differently according to different condition:for whom has objective ability to afford fine penalty but do not pay it subjectively,the highest deadline of the exchange between fine penalty and free punishment should be three years;for whom do not has ability to afford the fine penalty objectively,his or her fine punishment should be exchanged to public welfare tabor。Then the author elaborate the exchange way of unit crime。The fifth part ,the author puts forward detailed designation of the exchanged short-term punishment in China。The author analyse legislative model in foreign countries and propose detailed advice about which model to choose and how to design:the short-term punishment should be exchanged to public welfare labor,including how long should the criminal serve the community,the specific place and content they work,the supervisory office。... |
