Study On The Construction Of Misdemeanor System

Misdemeanors,as opposed to felonies,are minor crimes in which the act has little social harm and is punishable by a lesser punishment according to law.China's criminal law does not classify crimes as felonies or misdemeanors,and the criminal stratification of felonies and misdemeanors originates from foreign criminal legislation.Many countries in the world have a certain period of freedom of the penalty for the crime of the felony and misdemeanor of the division,the felony,misdemeanor to treat differently,thus forming a national misdemeanor system.There are"substantial standard theory","formal standard theory"and"comprehensive theory" about the demarcation of misdemeanor and felony in our country.Among them,the"form standard theory"in 3 years as the mainstream view.The content of misdemeanor system mainly includes the adjustment scope of misdemeanor,legislative embodiment,punishment measures and related supporting system.The theoretical basis of the misdemeanor system is the"ant's nest"theory,which is the justification of the existence of the misdemeanor system.The establishment of misdemeanor system is a kind of choice of criminalization.Although there is no system of misdemeanor in China,it is necessary and feasible to establish the system of misdemeanor.First of all,after the abolition of the reeducation through labor system that has existed for decades in China,the original regulated behaviors need to be filled by relevant systems.There are four schemes in this field,including the security punishment system,educational correction system,diversion treatment system and misdemeanor system.Comparing these schemes,the misdemeanor system is the most reasonable one.In addition,before the abolition of the re-education through labor system,the"public security management penalty-reeducation through labor--penalty"sanctions system for illegal and criminal ACTS collapsed,and began to shift to the"public security management penalty--penalty"dual sanctions system.This dual sanction system is not clear in legislation,which makes it difficult to make an accurate distinction in judicial practice,and the establishment of misdemeanor system can effectively solve this problem.Secondly,the legislation clearly divides the felony and misdemeanor,can provide different procedures for felony and misdemeanor cases,can optimize the reasonable allocation of judicial resources;China is in the period of social transformation,with many and complex social contradictions.The establishment of misdemeanor system can effectively meet the needs of social governance and ensure social stability and order.The executive power of our country is too strong,and the checks and balances on the executive power need to expand the scope of the exercise of judicial power,especially in the deprivation of personal freedom,should conform to the world trend,the punishment of personal freedom back to the judiciary.At the same time,the establishment of a misdemeanor system,the distinction between felony and misdemeanor,in line with China's lenient criminal policy,is the embodiment of criminal policy in the criminal law.Finally,our criminal legislation has the tendency of transferring misdemeanor to punishment,which is praised and criticized by the academic circle.However,it is a fact of fact and cannot be reversed.It should be affirmed that this legislative tendency is the result of people's choice,and the establishment of misdemeanor system is completely consistent with it.Then,how to construct the misdemeanor system in line with our country's reality?First of all,it is necessary to distinguish the adjustment scope of misdemeanor,that is,which harmful ACTS belong to misdemeanor.In China,part of the adjustment of the original system of reeducation through labor,the act of concurrence between the law of public security administration and the criminal law,and the minor crimes in the current criminal law should be included.In the future,if certain minor endangerment ACTS are defined as crimes,they should also be included in the scope of misdemeanor adjustment.Secondly,the misdemeanor system should be reflected in the form of legislation.Scholars have two views on this.Comparatively speaking,China should formulate a light crime law,in which misdemeanors are stipulated qualitatively and not quantitatively,and form a stepped punishment system of misdemeanors by adjusting felonies in criminal code,misdemeanors by adjusting misdemeanors in light crime law,and general administrative violations by adjusting administrative penalties law.As for the punishment of minor offenders,non-imprisonment penalty should be applied as far as possible,and community correction system should be brought into play to expand the scope of application of fine penalty.Meanwhile,attention should be paid to the application of sub-cases,and some non-penalty penalty measures should be added.Build system of misdemeanor,will produce a large number of minor cases,and with limited judicial resources,will all misdemeanor case is not reality,criteria for the conviction to establish and improve the mechanism of the misdemeanor cases from sin,shunt to misdemeanor case processing,mainly have misdemeanor,misdemeanor not to Sue system and reconciliation system suspend guilty announcement system.Finally,the establishment of the misdemeanor system will cause some "crime label" problems,in this regard,we should establish a return system for minor offenders-the elimination of previous convictions system.