The Research Of Criminal Conciliation System

As a system of settling disputes, criminal conciliation means a settling system of criminal disputes after the criminal committed a crime which consists of two conditions. The first condition is that the criminal admits to a crime actively and makes some corresponding remedies. And the second condition is that the victim or the prosecutor forgives the criminal or concedes to reduce criminal liabilities of the criminal or exempt him from criminal liabilities. When the above-mentioned conditions are realized, the two parties shall communicate and negotiate with each other and shall come into mutual beneficial agreement which has a influence on the criminal liabilities of the criminal. At present, the criminal conciliation system of western countries is at a mature stage. However, the criminal conciliation system of China is still at a exploring stage and faces the problem that it will conflict with traditional judicial theories. Taking positivism rules mode as the breakthrough point, this article analyzes the rules mode of criminal conciliation and learns the successful experience of criminal conciliation system of foreign countries. The article gives a solution to the problem that unilateral rule of Chinese criminal judgment is deficient. The solution is to build a criminal conciliation system which is in conformity with national conditions. The article shall expatiate on the above-mentioned point of views in the following four parts.Part one shall argue that the governance mode of rules in criminal conciliation can efficiently make up the deficiencies of unilateral system of criminal rules. The governance mode of rules of legal positivism concludes the following content: as a regular system, law gives birth to internal and external point of view resulting from that people have different viewpoints to rules; law is the union of primary rules and secondary rules, and the rule of recognition of the secondary rules, existing in judge's, officer's and other person's practice, is a standard to appraise other rules. Regardless of the attitude to rules of the class being ruled, criminal rules force the class being ruled to obey the rules by restraining force. Hence, criminal rules have the character of unilateral system. Social members are divided into two groups - group making the rules and group obeying the rules, attribute to the unilateral system of criminal rules. The antagonism shall result in the problem of seizure of power to make rules and the problem of overspent of litigant source. In order to solve the above-mentioned problems, the group obeying the rules should hold internal point of view to criminal rules, i.e. to consider obeying criminal rules as their obligation. The governing mode of rules in criminal conciliation can solve the problem.Part two introduces the practice of criminal conciliation of several representing western countries. Basing on comparison of differences of criminal conciliation between civil law system and Anglo-American law system, this part concludes system mode of criminal conciliation and protecting measures on procedural rights. Comparison of criminal conciliation between civil law system and Anglo-American law system, this paper conclude that the two systems have different characters in several aspects, etc. origin, legal basis and acting ways. Furthermore, this paper summarizes that in according to difference make-peaces, criminal conciliation can be divided into self-conciliation between criminal and convict, conciliation caused by third party and safeguard of criminal conciliation on procedural rights in western countries.Part three mainly analyzes the deficiencies of the situation that Chinese criminal conciliation is making up criminal trial system governed by unilateral rules and points out the problems existing in viewpoint and technique of Chinese criminal conciliation. Whether it is in entity law basis or in proceeding, the Chinese criminal trial shows that it is a governing mode of unilateral rules. This governing mode of unilateral rules is not suitable to the economic development of China. Criminal conciliation is needed to mitigate the legal rigidity. However, the development of criminal conciliation faces challenge from the problems of concept and technique in traditional criminal judicial theory and expansion of trial power of judges.Part four sets forth the necessity of perfect of Chinese criminal conciliation and how to find a system mode suitable to Chinese condition. Confronted with the above-mentioned problems, Chinese criminal conciliation still moves toward the direction of governing mode of rules. None but this can unify the attitude of officers and individuals to criminal conciliation. Then the maintenance of social order will not depend on the deterrent of restraining power of law but depend on that social members consider obeying rules as their obligation. Therefore, the perfection of criminal conciliation with governing mode of rules is quite necessary. In fact, China is doing some profound exploring. Beijing, Shanghai, Jiangsu enacted some criterions and policies. But which one is the most suitable one to China? Through analyzing whether or not a make-peace is needed and the choosing of make-peace, we found the most suitable one to Chinese situation, i.e. the criminal conciliation procured by People's Conciliation Committee. At the same time, we should provide legal technique support for this mode in procedural rights.