On Application And Completion Of The System Of Probationary Suspension In This Country

Probationary suspension, as a certain criminal justice system, is regarded as the cosset of the current system of crucifixion, because it reflects the socialization, individuation and humanity of crucifixion together, in keeping with the basic tendency of the development of crucifixion and the trend of the progress of human civilization. In current developed nations of legal system and institutions, system of probationary suspension is relatively complete and the application of justice is relatively universal. By comparison, the legislation of system of probationary suspension in our country is relatively late, therefore, it is lagged back while develops a little, besides, the judicial practice is not satisfied. Based on the findings of a good many problems in system of probationary suspension in our country and the feeling of the current situation of the judicial practice, the author takes as object of study the application and completion of the system of probationary suspension in our country by analyzing and studying some problems found in system of probationary suspension stipulated in Criminal Law and the judicial practice, then brings up with some suggestions in completing system of probationary suspension in our country.The author takes as the breakthrough point the start and the development of system of probationary suspension at the beginning of this essay, then studies the type and function of probationary suspension. It is regarded that the modern system of probationary suspension comes of the successful personal practice of an American, John Augusta; the cultural background of law and the practical environment of China itself can not produce fertilizer for the modern system of probationary suspension, therefore, its appearance in China is just the result of transplantation of foreign laws, mainly from system of probationary suspension of western countries, e.g., Japan, Germany etc.. With regard to the type of system of probationary suspension, the author mainly introduces 3 kinds: postponed declaration of probationary suspension, postponed execution of probationary suspension and postponed lawsuit of probationary suspension. Probationary suspension is not only propitious to avoiding disadvantages of short-term liberal crucifixion, achieving purpose of special precaution of crucifixion, reducing cost of executing crucifixion, but also favoring re-socialization of the criminal, then advancing harmoniousness of the society. The second part states the applicable conditions of general system of probationary suspension in our country are exposited. Following the common viewpoint in the circle of Criminal Law, the author analyzes and studies the applicable conditions of probationary suspension from 3 aspects: prerequisite, essential conditions and excluded conditions. Based on analyzing the applicable punishment and prison term of probationary suspension, it is regarded that three-year prison reflects not only retribution but also precautions, in keeping with the strategy of combination of punishment and mercy, punishment and education and the principle of accordance of crime, responsibility and crucifixion. Three-year prison is a level of lawful crucifixion stipulated in Criminal Law, also the significant dividing line of serious crucifixion and slight crucifixion. Therefore, the stipulation of three-year prison is ought to be maintained in Criminal Law. The criminal plot of probationary suspension is ought to be the degree of social perniciousness of criminal activities and it is the comprehensive evaluation of subjective viciousness and objective harmfulness, mainly including 5 aspects: crime with motivation deserved tolerance, over-defense, over-done in avoiding risk etc.. The performance of conviction is the attitude of criminals showed to the crime they have done, which directly reflects their subjective perniciousness and the degree of harm to others'bodies, and it is embodied as follows: positive attitude to admit crime, giving up to the police initiatively and compensating the victims voluntarily etc.. Besides, it is emphasized, in the judicial practice, that peccavi and conviction are ought to be distinguished, so do the real conviction and the false conviction. Through analysis and proof, it is regarded that the criminal plot and the performance of conviction are 2 aspects with different natures and they are objective basis on which we can make a judgment whether the behavior will not do a harm to the society after the application of probationary suspension, therefore, same attention is ought to be paid to these 2 aspects when probationary suspension is applied.The third part, through empirical research and analysis, probes into applicable characteristics and existent problems of probationary suspension in our country, pointing out applicable current situation of probationary suspension in our country: first, although application rate of probationary suspension shows an ascending trend in our country, because of the comparative principle and abstraction of the applicable substantial condition of probationary suspension formulated by Criminal Law: no harm to the society any more indeed, and because of lacking referent standard of uniform basis, while considering whether a certain criminals is applicable to probationary suspension, judges are not fully clear how to judge all kinds of legal and considered situations of penalty measurement so as to judge whether criminals are probable to recommit crime, whether criminals will not jeopardize the society any more. Therefore, judges are apt to weight concrete circumstances of different situation of penalty measurement and other related crimes based on personal will, which causes more subjective character and haphazardry to application of probationary suspension; second, because law does not formulate programming conditions to apply probationary suspension, no inspection organ and society or the masses participate, human-kindness cases and relation cases are hard to avoid, haphazardry of applying probationary suspension is comparatively large or even abused; third, 3 kinds of cases, voluntary injure, traffic accident and post crime, are inferiorly applicable to probationary suspension; forth, although application rate of probationary suspension of minor is obviously higher than that of adult, shortage of system of probationary suspension of minor criminals goes against particular protection of them, due to non-discrimination of Criminal Law while applying probationary suspension in treating adult criminals and minor criminals; fifth, in the issue of handing over probationary suspension criminals, Court of Law in different places lack standard and efficient hand-over system with Ministry of Public Security, however, Ministry of Public Security are apt to take forms to inspect and supervise probationary suspension criminals, without orderly ways to follow, which results in invalid inspection of probationary suspension criminals and serious phenomenon of separate-supervision and missed-supervision; sixth, application of probationary suspension differs greatly in different places.The forth part emphasizes on studying perfecting system of probationary suspension in our country. By analyzing and proving applicable current situation of probationary suspension in our country, it puts forward a few suggestions on perfecting system of probationary suspension in our country: first, substantial condition and exclusive condition of probationary suspension, which are formulated by the 72nd clause, the 74th clause of Criminal Law, should be, in the form of judicial explanation, divided into 3 situations: generally apply to probationary suspension, possibly apply to probationary suspension and not allowed to apply to probationary suspension, so that applicable condition of probationary suspension is maneuverable, ensuring case quality and preventing abusing free power of judge and measurement; second, in the light of lacking ensuring procedure to apply probationary suspension at present, it is necessary to establish open and transparent hearing system of probationary suspension. Probationary suspension hearing changes application of probationary suspension from secret operation to open trial, puts the determination process of probationary suspension under supervision of law and society, and reduces haphazardry of judges to apply probationary suspension, which facilitates realizing justice of probationary suspension. Moreover, it fully reflects principle of divisionalize and balanced-system to formulate strategic decision of participation for inspection organ, Ministry of Public Security and other related organizations, providing strong judicial surety for putting an end to judicial corruption in the process of applying probationary suspension; third, because crime record puts a strong impact on minor criminals, postponed execution of probationary suspension which is applicable to eliminate crime record should be added to minor criminals, and the provision that successive crimes of minor are not allowed probationary suspension should be canceled, which will inevitably facilitates minor criminals of probationary suspension to preferably alter themselves in the period of probationary suspension test. Meanwhile, this type of probationary suspension and postponed execution of probationary suspension with reserved crime record can mutually make each other's defects complete, making minor's system of probationary suspension more scientific and reasonable in our country; forth, on condition that Ministry of Public Security is in charge of inspecting probationary suspension, technical inspection institutions of probationary suspension should be established inside Ministry of Public Security and inspection missionaries of probationary suspension should be made clear, supervision of inspecting probationary suspension from inspection organ should be strengthened, cash deposit system of probationary suspension should established, so that inspection work in our country can be accomplished successfully.