On The Perfection Of The Supervision Upon The Execution Of Altering Custodial Penalty

The supervision upon the execution of altering custodial penalty is an important part of the institutions procuratorial system in China, and mainly supervises the application and the verification upon commutation, parole and temporary execution of sentence outside prison. Whether the power of commutation and parole, which are the most important levers and means of education reform and realizing a policy, can be legally used is a vital symbol of measuring a nation's law-governing situation and civilization degree. Once this power characteristic of national might is abused, the citizens'rights cannot be safeguarded, and people's confidence and trust to the law-government will be blown as well, so the improvement of the construction of the democratic law-government will be greatly influenced. However, the present situation is: the legal regulations on the supervision upon the execution of altering custodial penalty are so doctrinaire that in practice, procuratorial organs do not have enough unified standards upon the content, type and procedures of three parties'supervision, and only focus on the supervision after the event but neglect that before the event, supervise a too narrow scope, only make written supervision and so on, and thus influence the actual effect of supervision. This thesis seeks to construct a series of feasible supervision system, through studying the issues in the supervision upon the execution of altering custodial penalty, in order to improve the right execution of penalties, ensure judicial justice, and sufficiently show the deterrent of national blow and punishment upon crimes, and hence consolidate the state regime and defend social order, by strengthening the work of the supervision upon the execution of altering custodial penalty.Through the comparative and empirical methods, this thesis compares the domestic and foreign supervision upon the execution of altering custodial penalty, and on the basis of the practice of the supervision upon the execution of altering custodial penalty in China, by analyzing the issues and disadvantages of the supervision upon the execution of altering custodial penalty, proposes the reforming and perfecting ideas. The whole thesis is divided into four parts: the first part generally discusses the supervision upon the execution of altering custodial penalty. Firstly, the definition and characteristics of the supervision upon the execution of altering custodial penalty is discussed, and the author thinks that the custodial penalty can more directly presents the relationship between this kind of penalties and a prison and its particularity of the results of executing the alteration, so in this thesis the author substitutes the custodial penalty for what is usually regarded as imprisonment penalty, and it refers to the imprisonment penalty in the narrow sense, especially the penalty against freedom. Unless specially stated, the custodial penalty only includes penalties executed through detention, fixed-term imprisonment and life imprisonment, but dose not include the issues of control and stay of execution. In this thesis the supervision upon the execution of altering custodial penalty refers to he supervision, implemented by procuratorial organs, upon the procedures of altering criminal execution, including commutation, parole and temporary execution of sentence outside prison, caused by supervising organs'application for altering criminal execution in the process of executing the custodial penalty, and this kind of supervision has such characteristics as certain and various content, indirect supervising process, special supervising organizations, non-obligatory supervising force and so on; secondly, it discusses the legal basis and organizations of the supervision upon the execution of altering custodial penalty. The constitution, the criminal law, the criminal procedure law, the prison law and numerous judicial explanations is the legal basis of the supervision upon the execution of altering custodial penalty, and the organizations of the supervision upon the execution of altering custodial penalty mainly includes procuratorial organs'special organizing institutions or procuratorates in prison and supervising offices in prison; thirdly, it discusses the content and functions of the supervision upon the execution of altering custodial penalty in China. Procuratorial organs examine and supervise such activities as commutation, parole and temporary execution of sentence outside prison and so on, guarantee the successful alteration of the execution of the custodial penalty, ensure the right implementation of national laws, safeguard the justice of penalties, defend the legal rights of criminals and formal carrying of education, reform and controlling activities in prison; fourthly, it reviews the reform history of the supervision upon the execution of altering custodial penalty in China. The establishment and development of the supervision upon the execution of altering custodial penalty experience three stages: the first one is the initial stage (1949-1957), the second one is the stage of tortuous development (1957—1976), the third one is the stage of whole development (since the reconstruction of procuratorial organs in 1978); fifthly, it introduces the situation of the supervision upon the execution of altering custodial penalty in Britain, America, France, Japan, and three Chinese regions of Hong Kong, Macao and Taiwan, and make a brief comparison with the supervision upon the execution of altering custodial penalty in China. The second part mainly discusses the content of the supervision upon the execution of altering custodial penalty in China, and accounts for the content of the prison based on the forms of altering such three custodial penalties as commutation, parole and temporary execution of sentence outside prison, aiming at through the analysis of the content, ensuring the main procedures and keys of supervision. As for commutation, the supervision should focus on the conditions of the commutation's targets, the conditions of the commutation's degree, and the conditions of the commutation's process; as for parole, the supervision should focus on the conditions of the parole's targets, whether the minimal serving time is realized, whether the substantial conditions of parole is met, and whether the legal process is met; as for temporary execution of sentence outside prison the supervision should focus on the conditions of targets, the conditions of verification, the conditions of procedures, and the conditions of execution. The third part analyzes the issues in the execution of altering the custodial penalty in China. Due to the deficiencies in system, the supervision lacks might, the execution of altering the custodial penalty has a high proportion of mistaken reduction and wrong implementation, the corruption in institutions easily takes place, courts and prison organs have a high subjective arbitrariness and so on, and deficiencies in the present system of the supervision upon the execution of altering custodial penalty lie in: firstly, procuratorial organs focus on the supervision after the event, and hence cannot correct mistakes in time. Procuratorial organs do not directly manage and examine criminals, participate in the activities of prison examination, examine commutation, and the materials of applying for parole lacks relevant legal basis, so in judicial practice, the people's procurate can only supervise commutation and parole according to the procedures of trial and supervision, and as a result, there is no way of supervising the examination of and application for commutation and parole, and when procuratorial organs finds out that courts'trial on commutation and parole is not appropriate, they cannot acquire sufficient evidence in a short term. These procedures of examining after the event actually deprive procuratorial organs of the substantial power of supervising the whole process of commutation and parole; secondly, the supervising scope is too narrow, and the examination and supervision is greatly insufficient. The criminal procedure law prescribes the supervision upon the examining organs that approves temporary execution of sentence outside prison, but neglects the supervision upon the people's courts that determines temporary execution of sentence outside prison; the Prison Law only prescribes the supervision upon the inappropriate determination about commutation, but cannot supervise the criminals who during the term of imprisonment has shown true repentance and hence may be commuted but actually not commuted, and as a result, the vacuum of examination and supervision is easily created, and relevant sections or personnel has too much authority of free determination, and the corruption in prison is caused; thirdly, the supervision lacks obligatory force. Procuratorial organs can only supervise according to the copy of the written judgment, propose suggestions on correction when finding problems, and lack such obligatory force as protest. In judicial practice, it is the intermediate people's courts that make the order, but the actual procuratorial organs are counties'procutates and their dispatched procuratorial offices in prison, and such supervision is obviously not competent; fourthly, the legal regulations are not definite and even so conflicting that it is serious that procuratorial organs have many difficulties when supervising and administrating, the effectiveness of the supervision upon the execution of altering custodial penalty is severe. The fourth part proposes the ideas of reforming and perfecting the system and procedures of the supervision upon the execution of altering custodial penalty focusing on the present issues: on one hand, the perfection of supervising system should be strengthened. Firstly, perfect the present legislation and normalize the supervising system. Sort out, normalize, and centralize the supervising content related to the execution of penalties and supervising activities in executing places scattered in the relevant laws and regulations, establish a systematic and scientific supervising system, normalize supervising behaviors; secondly, strengthen the construction of the procuratorial organs dispatched to prisons, strengthen the exercise of supervising abilities from all perspectives, improve the actual effect of supervision; thirdly, alter the supervising ways, alter the supervision after the event to the synchronous supervision, strengthen the initial supervision upon the execution of altering custodial penalty, ensure the precautions; fourthly, expand the supervising scope, endue procuratorial organs with the power by which they can urge the supervising and managing organs to formulate the examining methods of rewarding and punishing criminals in time and revise unscientific and unreasonable regulations in time, and suggesting power of proposing commutation and parole; fifthly, strengthen legal obligatory force of procuratorial organs'supervision, definitely regulate in laws the written legal force of correcting illegal behaviors. On the other hand, the perfection of supervising procedures should be strengthened. Firstly, establish the notification and the hearing system. Supervise each procedure of penalty activities executed by the organs of executing penalties to ensure the quality and effect of the supervision upon the execution of penalties; secondly, enhance the clarity degree, and ensure openness, equity and justice; thirdly, abolish temporary execution of sentence outside prison, and in stead establish the system of interrupting the execution of a penalty. Alter the method of adding the period of executing sentence outside prison into the period of executing sentence in prison in the present system of temporary execution of sentence outside prison, implement the principle of interrupting the period of executing sentence, in order to fundamentally prevent a criminal from avoiding service through the execution of sentence outside prison by being temporarily discharged from prison.To strengthen the work of the supervision upon the execution of a penalty is the necessary requirement of applying to the social advances and the developing tendency of modern politics, improving the legal and scientific management by the organs of executing a penalty, advancing the law-governing progress, establishing and preserving a nation's law-governing image; it is the objective requirement of indeed preventing and correcting the issues of lax law enforcement, unjust law enforcement and unmoral law enforcement which the public violently respond to, ensuring the correct execution of a criminal determination and order, and safeguarding the unified and correct implementation of national laws; it is as well the urgent requirement of carrying out the principle of connecting punishment with education and reform, safeguarding the legal rights of the supervised and administrated personnel, improving the quality of supervision and administration and reform, preventing and reducing recommitment, ensuring the realization of the aim of national penalties and the completion of the task of criminal procedure, and establishing a good legal environment for the reform and opening-up and accelerating developments. The perfection of the supervision upon the execution of altering custodial penalty requires us to, with an attitude of seeking truth and being practical, and an initiative and developing spirit, strengthen the studies of system and practical exploration, venture to transcend national boundaries, refer to progressive experience and behaviors, establish t the concept of advanced law enforcement, completely renew the supervising methods, perfect relevant legislative content, reasonably strengthen the supervising function, and enhance the effect of the supervision upon the execution of altering custodial penalty, in order to continually improve the socialist law-governing civilization.