Probation System And The Issues Related To Research

Probation has won the favor in the practice once born and get a place in modern penalty system because it is not only a combination of socialization, individualization and humanization of penalty, but also an embodiment of education, correction and return ideas as to abreast of the times. The article discusses the value and function of probation based on theory and history , and explains the situation of developed country on probation pratice in order to supply reference to us found on sufficient data and experience. To set up a system with all sides and clear points, the thesis pays attention to positive research with methods of critical, comparative and dialectic analysis , from general to individual, from abstract to concretion , and combines theory with practice , integrates objective with subjective matter. The whole thesis is composed of five parts with 32000 words.The first part, mainly focuses on a brief introduction of the concept, origin and basic type of probation, and analyzing its legal nature, theoretical basis and value. The first, the modern meaning of probation refers to a system, in which people who have already been found guilty can obtain a stay of sentence and execution of penalty with some certain conditions, and they will be inspected for a certain period of time and the eligible will not be punished any more. This system originated in Anglo-American countries , and up to today ,can be basically classified into two unique types: the delayed sentence and the delayed execution which is more suitable for China. The second, as to the legal nature of probation, there are many different opinions, such as penalty discretionary theory, execution theory, double attributes theory of discretion and execution, independent type of punishment theory and pardon and eradication, the author prefers to the double attributes theory .The third, the probation theories are deeply influenced by the Humanitarian Ideas and the Individual Punishment Theory, has been growing within the argument of the aim of penalty, the author prefers that the aim of probation should include three levels: punishing criminals, preventing crime and protecting legal interests. The three levels are progressive one by one with a final aim of protecting the legal interest.The second part, is a point of the thesis. It analyzes existing circumstances and qualifications of probation in China. As to circumstances , at first introduces the status of applying probation of China in recent years and summarize its characteristics: (1) In general, the number of people who are sentenced to probation is increasing year by year and the application proportion is growing yearly too. (2) As far as the distributing of probation is concerned, there is a higher application rate in the crime of damaging of pubic safety, corruption and bribery and dereliction of duty; secondly, many scholars think that the application rate in our country is very low and the author presents different opinion. Thirdly, suggests we think about enlarging applying scopes according as our need and capability, and point out that the American probation system is facing with predicament and problems including wide application range, which can be used as a reference to the application of probation in our country. The another part on the qualifications of probation application .Firstly, the essential condition of probation is that the criminal will no longer endanger the society, according to this paper, can be transformed to the possibility of committing a crime again and considered by criminal details, demonstration of repentance and personal details respectively. As far as the circumstance of crime is concerned, we should consider such situations as negligent crime, coerced crime, discontinuance of crime, excessive defense and excessive urgent danger prevention. Demonstration of repentance mainly refers to voluntary surrender, confession, disgorge ill-gotten gains, compensation and so on. Personal details relates to the idea of individuality of execution. Then, on the formal conditions of applying suspension of sentence, this paper discusses the question that control is not necessary to apply probation, and explains why our country is suit to model of "sentenced but suspend executing " .Finally, it combines formal condition and essential condition to understand about application. The former which indicates harm and dangerness of the criminal should be considered carefully to estimate the possibility that the criminal will commit a crime again. The third part, the pivot objects of probation apply on-negligent crime such as traffic accident crime and questions on applying probation to minor criminals. At first, probation apply on traffic criminals is up to adequate amends to a certain extent but not the only standard, or there is a trend to abuse probation. The second, minor crime mostly appear as property and sexual violence by force which is taken into account in probation ;Besides,this paper agrees with the judicial explanations on the conditions probation and proposes not to excess applying on the minor criminal in the eight kinds of serious crimes.The fourth part, discusses probation in criminal reconciliation system. This paper proposes to construct the criminal reconciliation system in private prosecution cases, and conceives a plan on the concrete model. Correspondingly, analyses further about design and function of probation.The fifth part, mainly brings forward corresponding solutions to questions of probation in the circumstance of community correction mechanism. Firstly, this paper suggests to introduce the model in common law system of which the ministry of justice takes over the inspection job, and affirms the rationality in our country that the Grass-Roots justice institute plays the role of the main body of inspection. Secondly, improving and perfecting the connection work to avoid being out of control. Thirdly, It suggests introducing community service order of non-penalty punishment on nonage criminals, and gives a design on delivery of community service order . Directed by the idea of execution individuality , quests for the multi-methods of minor criminals on probation.