On The Pardon System

Pardon,which in ancient times was a tool of the emperor to maintain the rule of man,has now undergone a profound metamorphosis in its jurisprudential nature,taking the defence of the overall interests of society as its fundamental guideline.It is stipulated piecemeal in the constitution and criminal laws,but its content is relatively general and lacks specific provisions on the substantive and procedural construction of amnesty,leading to a certain exploratory nature in practice.With the successful implementation of the 2015 and 2019 amnesties,it is clear that the amnesty system is in line with the constitutional spirit of "the state respects and protects human rights" and the requirements of the criminal policy of leniency and severity.The two amnesties have also contributed greatly to the improvement of the pardon system.This article aims to improve the pardon system by analysing its theory and practice.The first part is an overview of the pardon system.It defines the concept of pardon and digs deeper into the theoretical basis for the justification of the pardon system,arguing that pardon is based on the humanitarianism in legal philosophy,which not only meets the requirements of the criminal policy of leniency and severity,but also helps to achieve the penal purpose of special prevention.The second part examines the positioning of the pardon system in the penal system and compares it with similar penalty enforcement systems.The first part collates the doctrine on the positioning of the pardon system in the penal system and proposes that the pardon system should be subsumed under the study of the penalty enforcement system.To further clarify the unique value of pardons,they are compared with similar systems.The pardon,which in its early days substituted for the realisation of the function of a sentence reduction system,should nowadays be excluded.Article 81(1)of our Criminal Code provides for special parole,and this article examines the "special circumstances" that make it inappropriate to retain this provision in the future.The third part is to examine the legislation of extraterritorial pardon systems and to conduct a comparative analysis with China.This paper selects typical countries with more complete legislation in civil law and common law systems and conducts a detailed examination of the pardon system respectively.This paper compares and contrasts China’s legislation with the legislative model,substantive structure and procedural settings,and draws on the experience of foreign legislation.The fourth part is based on the death penalty and Minor offenders,which have been explored in practice,and aims to expand the scope of application of pardons.The pardon of the death penalty is in line with the trend towards restricting the death penalty in China and is also necessary to fulfil international obligations.Procedurally,it can make up for the inadequacy of the death penalty review process and effectively extend the time limit for the issuance of death penalty execution orders.However,it needs to be applied in a restricted manner.Granting pardon to minor offenders can eliminate excessive deprivation of rights or qualifications and facilitate their better return to society.Finally,in the light of the lack of clarity of substantive conditions in practice,the meaning of "not being a real danger" is explored,and the criteria for this condition are clarified.The fifth part is the specific construction of the pardon system in China.Based on the principle of legislative efficiency,it is advisable for China to make detailed provisions for the pardon system based on the current legislation.The types of pardon will be divided into special pardons and pardons with the right of re-instatement,and the scope of application will be extended to minor offenders and those who are immediately executed.Based on the fact that in the future the offender will be given the right to apply for a pardon,the pardon procedure will be divided into two procedures,one initiated by the state and one initiated on application,which will be structured separately.The pardon system is an important step in linking criminal policy and the penal system,and is of great significance in achieving the purpose of special preventive penalties and further safeguarding human rights.Through the above-mentioned research,the author aims to improve the pardon system.