A Study On Criminal Injunction

The Injunction is a new system of "the eighth amendment". The purpose of this system is to enhance the effect of Public Surveillance and probation. The final purpose of this new system is to reform and educate criminals in order to make them fit into society after their punishment. After its practical implementation, academia discussed a lot about its legal concept, scope, object, applicable period and applicable principles. However, there are quite a lot of problems about this new system in the judicial practice. Therefore, this paper wants to find these problems in the judicial practice based on analysis of previous research. The breakthrough point of this paper is the operation situation of the injunction’s judicial practice. After problems, the countermeasures are put forward in the last part of this article.The dissertation is set into five pars.The first chapter makes an introduction of criminal injunction, including its legal concept and legislative history. On this basis, this chapter makes an analysis of criminal injunction’s legal values. The relationship of prohibition and execution socialization and penal individualization can also be seen in this part.The second chapter is the analysis and comparison of different systems. It makes an introduction of similarities and differences between injunction and security measures, injunction and criminal record institution, injunction and probation direction, injunction and qualifications punishment. This section uses charts and timeline to reflect this new system’s unique attributes directly, such as its legal concepts, legislative intent, applied deadline and applied objects.The third chapter studies the specific details of injunction of doing particular activities, prohibition of entering in particular places, prohibition of contacting specific persons. It also studies the different legal consequences of violating different injunctions. Of course, the analysis of reasons of different legal consequence is the very important section of this chapter.Two years after the injunctions, Basic people’s court sentenced many people to injunctions in community. The forth chapter organizes and classifies 232cases searched in the magic weapon of Peking University, then finds the problems presented in these specific cases. For example, some cases violate the principle of retroactivity; different courts make different sentences on the cases with same backgrounds; some injunctions prohibit contact victims with fault; judicial interpretation list the person who has criminal record on the injunction; some judgments with driving bans have the law competes question and so on nature.The questions mentioned above are the basic of the study in chapter five. It gives two suggestions to this new system. It should be particular noted that injunction’s legal provision, legal nature, legal function discussed above are the foundation of this part. The first advice is that judge should pronounce sentence of injunction with principle of necessity, principle suitability and principle of actual effect. The principle of actual effect is the most important principle among these three principles, because it determines the principle of necessity and the punishment’s actual effect. At the same time, the judges should also follow the principle of free evaluation evidence based on their society experience, legal knowledge and legal ethics. The second advice is that people who arrest the judgment should have right to lodge an appeal. Through these two advices, this new system may be better and better in the future.