A Jurisprudential Study On The Attribution Of Punishment Execution Right

With the development of China’s political system reform, the reform of the judicial system continues to be deepened. The " Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law ", which made on the fourth Plenary Session of the 18 th CPC Central Committee, stresses that “it is necessary to improve the system of restriction and cooperation in the rights of investigation, prosecution, trial and execution from the public security organs, procuratorial organs, judicial organs and the judicial administrative organs. This is a deeper discussion on the "further optimizing the allocation of judicial authority" in the reform of "Decision of the CPC Central Committee on Some Major Issues Concerning Comprehensively Deepening the Reform ". "Further optimizing the allocation of judicial authority" has been mentioned since the 17 th CPC National Congress. There are many jurisprudence discussions on the theory of the hot issues, putting forward many new ideas. But the researches mainly focus on the criminal investigation, prosecution and other aspects. There are few research results of the system of criminal and the legal nature of the enforcement of the penalty.Execution of punishment means that the executive organs of state power of punishment make specific penalty execution to the criminals in accordance with the legal criminal judgments made by the Chinese judicial organs and the relevant laws and judicial interpretation of the relevant provisions. The right of penalty enforcement is refers to according to the provisions of national law granted specifically to criminal law enforcement authorities of criminals is the power to punish.The understanding of legal penalty enforcement affects our country’s penal execution power allocation and execution of punishment system reform. However, the penalty in nature, there are not clear and specific provisions and legal interpretations about the nature of the right of penalty enforcement in our country’s official document. Penology circle and pragmatic circles also exist controversials. After detailed analysis comparison of a lot of internal characteristics and external performance about punishment right and the state power(national legislative power, national administrative power, national judicial power, national procuratorial power), the author thinks that the penalty execution power is more inclined to administrative power properties from nature.This thesis is based on the theory of state power and power distribution, respectively, in several dimensions such as history, external features, intrinsic value pursuit, such as the foothold, more than a few dimensions and national administrative power and state power were compared, and of penalty execution power is belong to the administrative power. Besides the introductory words, the thesis includes four parts, each part of the main contents and innovative ideas is as follows:The first part mainly analyzes the current implementation in our country on penalty executive system and execution of the right configuration. The thesis summarizes the problems existing in the right configuration and system implementation of punishment in our country from three aspects. In order to find the problems, the author analyzes the problem oriented, analyzes our country’s penalty execution, the intrinsic causes of the dilemma, our country penalty learning circle and practice circle the execution of punishment right attribute of the unknown, which leads to the execution of punishment confusion exists.The second part mainly introduces the four kinds of theories on our country’s penalty of penalty execution of the property of, respectively the "judicial power said", "compound in said," relatively independent countries of public power "and" administrative power said, "and carefully reviewed our country penalty theory circles about the four theories mainly understanding and support of the theoretical basis, at the same time, the author of the above four kinds of academic viewpoints were more objective theoretical analysis.The third part mainly analyzes the power of penalty from the angle of history, concept and characteristic. The main points are as follows: from the perspective of history, the state power can be divided into the legislative and executive power, the state power theory is from the development of the legislative and executive power theory, then consider the penalty executive power belongs to administrative power from the perspective of history. From the concept and characteristic analysis perspective, the author compares the various characteristics between power and administrative power, divergent and expands the study. Through the above several dimensions, revealing the essence of characteristics of penalty execution of the basic requirements, the primary value pursuit of external and internal power characteristics.In the fourth part, by the comparison of the penalty power respectively with judicial power and administrative power, the author concludes the ideas that the penalty execution is belong to administrative power which will make an significance effect on the "executive power" of the current judicial reform in China.