An Analysis Of The Feasibility Of The Criminal Application Of The Modernization Of The Thought Of Providing For Family Support

The thought of permitting perpetrator to support parents lasted more than one thousand and four hundred years in Chinese feudal society and it had officially formed a system since the Northern Wei Dynasty. But the system was abolished in the later Qing Dynasty. Until modern time, the idea has not been applied in our country’s criminal field. In order to make up for the vacancy in this area, I attempt to analyze the feasibility of the thought to be used in the field of modern criminal, hoping the idea can form a modern system so as to play a positive role in reality.Firstly, I briefly introduce the process of permitting perpetrator to support parents from thought into the system. And I explain that the system in each dynasty has different conditions of application. So we should absorb the essence of its thought rather than from the system to construct modern system of permitting perpetrator to support parents. In addition, for the convenience of the reader to understand the idea, I also define the connotation of the thought of permitting perpetrator to support parents from the angle of its system. Meanwhile, I reflect on the situation of the thought in the modern use and express my personal opinion that creation of legal system should not ignore the local legal resources.Secondly, I explain the ancient and modern application of the thought has the same reason from three aspects of economy, ideology and politics. In addition, the thought is also necessary in the modern society in two aspects of theory and practice: in reality, the characteristics of Chinese population present generally one-child, the aging of the population and the shortage of social resources of support for the elder. In theory, this idea is also the need to inherit the culture of "filial piety", to follow the implementation of the "rule of virtue" and "rule of law" policy, and to pursue social effect of law. The above analysis is mainly to clarify the reasons of using the thought in the modern criminal field.Thirdly, I reflect on three kinds of negative effects of the thought of permitting perpetrator to support parents. The thought is not against the principle of equality, which reflects the substantial equality; the thought is not the only reason for the wind of revenge. And I point out the causes of revenge may be afterwards comfort and the legal interpretation work that are not in place. There is also a result of culture of "filial piety" that leads people to revenge for their parents. The thought does not weaken the deterrent force of penalty, but pays more attention to the education and transformation of criminal penalty function. After that, I explain the remaining positive value of the thought, such as showing the spirit of respect for the human, giving perpetrator humane care, maintaining social stability and reforming criminals through the emotional effect. In a word, the above discussions aim to illustrate the application of the thought is valuable.Fourthly, I propose the establishment of modern system of permitting perpetrator to support parents from the entity, the procedure and the way in the execution of punishment. In the entity, misdemeanor cases exclude part of felony cases can apply to the theory. As to the remaining people, they should meet the conditions in the aspects of age, the litigation stage, the former children and adopted children and the number of children. The requirements of the raised people are about age, health, situation of supporting and scope. Besides, the thought is not suitable for the victim whose parents have the only one child, but the death victim who does not support their parents can apply to the thought. In addition, I combine criminal reconciliation with the thought. To the requirement of time, we should not allow perpetrator who does not serve more than half prison term of the original judgment to apply to the thought in order to prevent the destruction of the seriousness of judgment. Perpetrators still perform original additional punishment even if they have been permitted to support parents. The investigation contents during perpetrators support their parents can be the same with the surveillance of residence, but we should add the inspection of perpetrator about provisions to their elders. After remaining the thought, the perpetrator does not necessarily perform the left penalty. We can consider reduce or exempt punishment for the perpetrator according to their behavior. For the times, the perpetrator only has one chance to be applied to the thought. In the procedure, establishing a survey finds out the necessity of application and the performance to their parents of the perpetrator. Setting up the administrative supervision system checks the law contradiction, and finds cheating abuse and the situation of raising the parents. We should design the procedure of judicial review which is divided into three steps, such as the starting procedure, review procedure and approval procedure. In the execution of punishment, we should classify the death penalty to be suitable for applying to the thought. And we also can put the thought as one of the legal reasons of probation, parole, outside the prison execution and community correction so as to use it in more fields. Finally, I innovatively expand the application range of the thought from three aspects, such as remaining elders to raise younger, retaining property to foster parents and keeping the accused some freedom to support parents.