Probe into China on building a sound system of suspended sentence

Abstract: the suspended sentence system in line with the legislative intent of Code of Criminal Procedure, in line with global trends in the penalty, but suspend the sentence in the process of implementing the system there are some shortcomings and problems need to be improved in practice, this paper applies from the suspended sentence object conditions; mention the subject and procedures; clear obligations were suspended sentence; a public hearing on the case of the suspended sentence system; improve people's help and education system of suspended sentence; a clear test of people during the suspended sentence; the supervising judge to exercise the right to suspend the sentence, etc. discusses many aspects of building a sound system for the suspended sentence.

Keywords: suspended sentence hearing system help and education system

Present in many parts of our grassroots people's court trial suspended sentence, has gained a good penalty benefits, but how the system of suspended sentence for a specific implementation, the lack of appropriate Laws to regulate them, in the implementation process, caused some problems, so it should be systematic summary of grassroots people's courts across the country experiences and lessons of the pilot suspended sentence, to develop appropriate Laws and regulations, so that there is legal basis.

First, expand the application of the object suspended sentence

Grassroots people's courts across the country applicable to the main object of the suspended sentence is a minor crime, while the adults and the crimes committed by units excluded. I believe that would confine the application of the suspended sentence a juvenile defendant's practice seems to be suspected of too narrow Its reasons are:

First, set a departure from the suspended sentence system in mind. People's Court applied the primary purposes of the suspended sentence, is to save litigation costs, reduce unnecessary litigation a waste of resources, and practical application of the object will suspend the sentence is limited to juvenile delinquency, the court also must consider the minor delinquency cases in specific circumstances, the decision whether to apply for suspension of sentence a juvenile defendant, the court applied the suspended sentence will rarely the case, then the system will reach the set objective.

Second, contrary to the principle of equality before the Law. China <<Constitution>> and Criminal Laws and regulations have clearly defined the principle of equality before the Law and practice applicable to suspend the sentence will be limited to the application object of Juvenile Delinquency The approach is based on the identity of the subject of crime to take a discriminating different way, contrary to established legal principles.

Third, for some legal entities if the implementation of Criminal activities, can also be applied suspended sentence, suspended sentence should not be limited to natural persons apply to the object crime.

Second, clear conditions applicable to suspended sentence

Under the current Code of Criminal Procedure did not suspend the sentence in the matter of the specific provisions, I propose the suspended sentence should be specified circumstances, and should not be explicitly cited the case of suspension of sentence, except as the provisions of the judge the case according to law with the specific case, the defendant natural conditions, the causes of crime and the attitude after the crime, compensation cases, the victim is understanding for analysis, that the public interest, you can make a suspended sentence.

Third, a clear subject and the procedures to bring the suspended sentence

I recommend: suspended sentence should mention the subject and the approval process to make it clear that the suspended sentence is confirmed, to solicit the views of prosecutors and victims, with the approval of the agreement, making the appropriate legal instrument served on the defendant, the prosecution authorities and the victims, to fulfill this duty to inform their rights. and made in the suspended sentence, if the defendant disagrees, taking into account the future difficult to implement an inspection tour, the general should be promptly revoked the decision and make a decision.

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Fourth, a public hearing on the suspension system of sentencing

I recommend: The People's Court to be the case for suspension of sentence, suspended sentence should be made before the court the trial judge called the prosecution staff, victims and their agents, defendants and their counsel together, can also be notified of the case needs representative of the unit where the accused, their families, invited the local NPC deputies and CPPCC members and relevant experts, to comment on the suspended sentence, the court fully listen to the opinion and reasons, to ensure the quality of suspended sentence case.

Fifth, a clear decision to suspend the obligations of people

Temporarily suspend the sentence was not ruling on the defendant, within a certain period of time required to fulfill its obligations within the prescribed time, fulfill the corresponding obligation of the defendant, the court ruling will make the decision not to terminate the proceedings; otherwise, the court the defendant will people make judgments. I suggested that the defendant's obligations should be clearly defined in the decision to suspend the sentence in the range of specific obligations should be the nature of the crime the defendant, the degree of harm, the defendant's personal circumstances to adapt.

Six, a clear test of people during the suspended sentence

The suspended sentence is not no sentence, but in a certain period of time temporarily ruling the test, specific test period setting, not too long, too long may be considered an alternative coercive measures; too short, you will not achieve test results, can not determine whether the defendant sincerely repent. I recommend: the test period of suspended sentence should be fully taken into account the factors set to make a reasonable limit, calculate the test period of the suspended sentence should be the date of decision to require six months to two years is appropriate.

Seven, a sound system of helpers who suspended sentence

At present, China's main targets applicable to community corrections, including controls, was sentenced to probation and other non-custodial punishment of Criminals, the public security organs of the specific work by the joint implementation and judicial administrative organs, and the object of the suspended sentence the defendant is still pending, it The authorities should help and education and implementation of community corrections agencies differ, while the public security authorities, judicial and administrative organs have undertaken the task is very heavy, does not allow its commitment to suspend the sentence and then the object of assistance and education, so specific work only by family, commitment to community groups and grassroots organizations in the People's Court decided to suspend the sentence of the accused, it shall also implement the help and education organization (personnel), the educators of the specific measures and assistance and education organization (personnel) responsibilities, etc., sound help and education system.

Eight, the supervising judge to suspend the exercise of the right decision

Judge suspended sentence to ensure the correct and fair decision, the judge must suspend the exercise of the right decisions to strengthen supervision. I recommend: You can suspend the sentence and the victims were given the right to reconsideration of the decision to suspend the implementation of the case record, regular review , random case activity and consciously take the initiative to accept the people's supervisor of special monitoring and supervision of deputies. In addition, the suspended sentence should also accept the work carried out in the public opinion, their supervision and other community supervision, to ensure that its law, open, fair, fair conduct, prevent the abuse of power.


References:

[1] Chen Weidong. Code of Criminal Procedure to implement countermeasures. Beijing: China's Founder Press, 2002.

[2] left-back people. Criminal procedures, Beijing: China University of Political Science Press, .1992.

[3] Wang Liming. Procedural fairness and judicial reform, Beijing: Law Press, 2001.

[4] Zhao Bingzhi. Penalty remarks to explore the issue, Beijing: Law Press, 2002.

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