On The Construction Of The Misdemeanor System In China

In foreign countries, there is a more mature division of the crime grade of misdemeanor, felony and violation of police in the criminal legislation division and the substantive law makes a more detailed and specific provisions on the misdemeanor and there are specific procedural norms for the treatment of the misdemeanor cases. With the rapid social transformation at present, a misdemeanor crime rate continues to rise. In order to reduce heavier and heavier burden of the current justice over accurate fact-finding crimes, the establishment of the misdemeanor system is not only conducive to education, probation and saving of the crime suspects, but also to the realization of diversion of simple and complex cases, significant improvement of litigation efficiency and saving of litigation costs. Reviewing the practice in China, the penal system which is constructed mainly based on the felony inevitably faces the embarrassment of not knowing how to deal with the minor criminal cases. Due to the fact the criminal law does not provide for the misdemeanor system, the justice has to replace it with "reeducation through labor" and "public security administrative punishment." However, many scholars seem, without exception, to crusade against the"arbitrariness"and"low legalization"of these two systems. Thus, the study on the misdemeanor system has important practical significance.This paper is composed of three parts, about 19,000 word in total. The first part discusses the review on the foreign misdemeanor system and enlightenments therefrom. The review on the misdemeanor system of the continental civil law countries, the Anglo-American law system countries and other countries with representativeness is conducive to the legislation in China. In summary, the characteristics of the foreign misdemeanor system with clear legislation, simple procedures and non-criminalization in the treatment provide beneficial enlightenments for the misdemeanor system in China.The second part analyzes the necessity of the establishment of the misdemeanor system in China. There must be a real urgent need for the birth of a new system and there is good soil for the development thereof. The establishment of the misdemeanor system in China is due to the demand, for which, first, a necessary requirement for carrying out criminal policies; second, an approach to the reform on education through labor, because there are no clear procedural norms for reeducation through labor and neither is no clearly defined scope, the existence thereof poses a potential threat to the personal freedom of citizens; finally, a choice to improve the penal system in China. The misdemeanor system, as a system detached from the ordinary penal system, has its own unique advantages.The third part elaborates the design for the misdemeanor system in China. This part first elaborates the determination of the scope of the misdemeanor. With regard to the study on the scope thereof, there are four representative opinions in China. By comparison and evaluation on the four opinions, this paper holds that it is more appropriate to regard the legally-prescribed punishment as the division criterion for the misdemeanor and the felony. Following that, this paper analyzes the penal set, the execution set, the procedure set and the social set of the misdemeanor, so as to have it differentiated from the system design for the felony.