Study Of The Provisions Of Article 37 Of The Criminal Law On “conviction And Exemption”

Criminal law is the last line to govern society, it consists of five principal penalties and three supplementary punishments, and give a severer punishment, give a lesser punishment, mitigation of punishment, exempted from criminal punishment, probation, release on parole, they are static penalty structure system and dynamic penalty application mode, association of activity and inertia, they common appearance the severity and deterrence. Because of the people’s conceptual knowledge of criminal phenomenon, and the people’s careful consideration of crime management, and the people’s non-stop pursuit of mitigation of penalty, and the society’s continue to advance of criminal policy of temper justice with mercy and comprehensive management policy of social management, the article 37 gets more and more attention in theory and practice. But because of the lack of rational knowledge, unified standard of omissions and many kinds of application methods, it leads to academic differences and practical application of deadlock. Although the current criminal law of the article 37 thirty-seventh of many books, But more emphasis on comparison with other statutory exemption from punishment as well as the application and improvement of non punitive measures, on the article 37 front of the clause “conviction pardon” provisions of the discussion is lackluster, therefore this paper based on the current theory research and judicial practice, through the five part inquiry the article 37 “conviction pardon” stipulates the connotation of referent, clear and specific applicable standard and applicable way, hoping to be helpful to the legislation and judicial practice.Chapter 1: Introduction. Through the legislative summary and effective judgment of justice statistics data comparison analysis, reveal the necessity and importance of the article 37 of “conviction pardon”.Chapter 2: Explain the article 37 of “conviction pardon”. This part of the circumstances of the crime identified as crime of sentencing, the “slight” limited to the evaluation of the degree of harm to social behavior and criminal, “there is no need for a penalty is defined as a test to check the crime dangerousness of size, will be exempted from criminal punishment,” the understanding of general prevention of exemption from punishment limit, clear only when “crime plot slight”, “need not be sentenced to a punishment” and “can be exempted from criminal punishment”, the three are ripe at the same time before making a judgment of conviction and pardon.Chapter3: Review of theoretical and practical dilemma of “conviction pardon”. The part is deconstructing criminal law boundary? Does it conflict with the principle of legally prescribed punishment for a specified crime? Whether independent exemption from punishment subject? Whether fuzzy judge discretion right degree? Clearly show “conviction pardon” question in the face of the current provisions further revealed the necessity.Chapter4: The analysis of “conviction pardon” provisions of the core value. Through to “convicted pardon” provisions have implemented the wide strict with leniency of criminal policy, expression of restraining criminal law, highlighting the theoretical value of the value of individualization of punishment and conform to the principle of a legally prescribed punishment for a specified crime, in line with the development trend of the relationship between crime and punishment, coupled to punish the criminal behavior of the real value of the discussion, break through the predicament of theory and practice, correctly guide theory circle and practice circle understanding “pardon” provisions encompassed conviction.Chapter5: The establishment of the applicable methods and applicable standards of “convicted pardon”. By comparing the relationship between “conviction pardon” regulations and related laws of the domestic and foreign laws and regulations, consideration, examine the 2015 year national exempted from criminal punishment judgment reasoning content and provisions, based on clear legal status can be used separately and comprehensive application on the proposed specific applicable standards: first examine the behavior people involved charges is the starting point of punishment for 3 years imprisonment or lighter punishment of negligent crime and not “serious”, “serious consequences” as elements of the crime; followed by the specific test crime and a crime is stated in the paper before and after the crime, crime of crime is consistent; considering the incidence of crime and criminal policy and social public opinion situation.