Empirical Studies On The Application Of Criminal Fine

The China’s law should base on its traditional culture, at present time, and quantitative and qualitative system for crime, because the construction of criminal justice lies on the transformative period from traditional to modern time. With the global communication more often, that how to find out what is the different thing of China’s law from both the continental and Anglo-American is the important mission for contemporary criminal research. Building the crime and penal system never success without considering of regulatory ideology and social control system, let alone start once for all. How to learn from foreign law based on differentiating the various laws is a necessary course for criminal justice construction, or the China’s law would never find his perfect way to match legal system.The mainstream academics in the last thirty years insisted on that criminal fine represent the lenience and global civilization of criminal justice, and that criminal fine was extending to more crime as an expression by increasing ratio of application. By contrast, the criminal law promulgated in1979did not set criminal fine as often as oversea, and our criminal fine ratio, as a result, the applying percentage of criminal fine is very low with the impact of optional method for criminal fine. Influenced by the oversea trend of criminal fine, most of scholars recommended that China should extend crime fine to more crimes and increase the application ratio of fine since1985. Accordingly, the1997criminal law extend criminal fine by mandatory fine with imprisonment, and that cause almost1st over three of crime in specific provisions of criminal law, especially for all property crime in daily life. However, the criminal fine was so hard to be paid by offenders after the new law applied to criminal justice in1997.Why does the criminal fine used very often in oversea countries describe the cockeyed phenomenon that law unmatched with China? Could it be explained by either criminal fine was used more often than it should be, or the criminal fine wasn’t proper for criminal justice system? Could it be explained by either the criminal fine amount was higher than the level which the offender can afford, or criminal fine should not be used for criminals and crime in China? Fine used for criminal justice was no choice or on behalf of penalty civilization? Thus, the dissertation focus on that thinking over criminal fine in oversea countries, and seeking to find out its reason why criminal fine in China was so hard to pay, and propose for reformation of criminal justice.By. literature review, chapter one introduce the Chinese academic researches about criminal fine in last thirty years. The author seeks to issue questions as below:(1) How do researchers in China conclude the situation of criminal fine, either fully analyze oversea criminal fine, or theoretical presumption?(2) Who recommend using fine, and why fine was overloaded in criminal justice?(3) What is the academic trend of criminal fine in China, and why it happened? Responded to issues, the author generates that:(1) There is no evidential analysis applied to criminal fine research. Two previous scholars introduce that the oversea trend of criminal fine was mainly applied to minor offence and regulatory offenses such as traffic offence, however, most scholar ignore the objective analysis and partially recommend increasing criminal fine in China. Empirical data for criminal fine in oversea countries absorbed directly from a few papers or books written or translated by four foreigners, without systematical investigation.(2) It do exists stable misunderstanding to Chinese academic fields and that lead China’s law to mismatch the empirical data which is far away the time Chinese scholars used.(3) Ignoring the objects of criminal fine applied in oversea countries is so different from China that minor offences and traffic offences which is crime in oversea countries but decriminalized in China.(4) The conflict between academic research cause serious waste of judicial resource. Most researchers highly recommended, before1997, to extend the boundary of fine and increase the level of criminal fine in China. However, after2000the national organs invest again plentiful human resource and promulgate judicial documents to deal with the serious problem of default since extended criminal fine.Chapter two analyzes the application and payment of fine in China by both empirical data from three primary courts and sixteen districts. In the first part, the dissertation tries to answer the following questions:(1) What is the general level of criminal fine, and what is the situation of specific crime in China?(2) What is the main part of crime which criminal fine applied to, and specific classification?(3) What is the main objects criminal fine applied to either legal unit or individuals?(4) What mode criminal fine used for either independently using or complementary fine with imprisonment?(5) What is the amount of criminal fine?(6) What is the financial ability offender pay for criminal fine? In the second part, this dissertation tries to investigate the level of fine payment and default in nationwide which are the center of this paper.For these issues, the author answer as following:(1) The general level of fine payment in three primary court up to63.8%, that is,638offenders per1000offenders were sentenced to fine, the mean level in16nationwide court is56.9%,which means569offender were punished by fine per1000offender, but the percentage level in property crime increase to100%.(2) Criminal fine mainly applied to property crime,80.7%of criminal fine consist of property crime.(3) Fine mainly applied to individual crime which takes up98.5%of criminal fine, and quite few of legal unit criminals which is only1.5%.(4) Offender was punished by complementary fine which is increase to96.9%, and only3.1%for legal unit criminals.(5) The amount of fine is so high that offenders have to use wage of several months.(6) Criminal fine mainly applied to offender with low education level and poor ability to pay fine.(7) The nationwide phenomenon of fine default is so serious that71.5%of offender with fine penalty cannot pay.Chapter three analyse criminal fine payment outside China by criminal statistics in34oversea countries or districts. In division1of this chapter, the author plan to coping with issues below:(1) What is the general trend of criminal fine?(2) What kind of crimes and violations are the main sources of criminal fine?(3) How about criminal fine amount?(4) What is criminal procedure for criminal fine in other countries? For these issues, the author answers as below:(1) Criminal fine in other countries has witnessed an undoubtfully decreasing trend since1970s.(2) Fine cases mainly applied to minor offences, and regulatory offences such as traffic offences.(3) The amount of fine is so low that offender can pay fine by several days.(4) Criminal fine case mainly sentenced by non-prosecution criminal procedure. With the classification of offences, the author assort offence into general offense which include but not limited minor offences and serious offence, and true criminal system without minor offences. Accordingly. the second division in chapter three specify the criminal fine level in different offenses system, and try to answer the following questions:(1) How about the specific level of criminal fine in different offenses system?(2) What are the main objects criminal fine applied to offender?(3) What pattern of the criminal fine was used for, either complementary fine with imprisonment or independent fine without imprisonment? The author answers as below:(1) Criminal fine is commonly used in general offences system because of the minor offences included, but some of countries’s level of fine is very low (below10%). However, the serious offences system in every country is very low without exception (20%or less).(2) Criminal fine cases applies to general offences come mainly from traffic offences, property crime in serious crimes take up a little part (around10%). Criminal fine without imprisonment is the main part of fine for crime (more than4/5), and very little fine with imprisonment (the lowest countries3.9%).Comparing Chinese criminal justice to oversea countries, chapter four conclude that China should control criminal fine, especially property crime, relied on the different mode and object. Thus this dissertation tries to answer the following questions:(1) What functions do the criminal fine played in Western societies?(2) What issues China’s fine in criminal law should focus on?(3) What reasons can explain the default of fine in China?(4) What practical schedules can be applied to deal with default? After analyzing every issue, the paper issues the following answer:(1) Criminal fine in oversea countries play a function of education and prevention, adjust legal system, save efficiency, regulate crime system.(2) Criminal fine in China should consider the situation and environment of China, criminal law’s adaptability, adaptability of judicial procedure, and adaptability of judicial conception.(3) The reasons why criminal fine in China is so hard to execute are that complementary fine is impossible for choice, that over-trust criminal fine more than it should be, that certain amount of minimum fine unavailable for arbitration, that the amount of criminal fine is higher than the financial ability the offender affordable, that criminal fine concentrate property crime for life support.(4) The practical schedules for criminal fine reformation are decrease the limitation of amount, and sentenced criminal fine match with the offender’s ability of financial payment, and transfer the mandatory fine to optional criminal fine. In this dissertation the best solution for fine default in China is to refuse fine with imprisonment from property crime since fine for property crime take up80%of total fine. By consideration of criminals who committed property crime is hard to pay fine with low education, complementary fine with large amount must bring about fine default. Therefore the logic premise that construct the proper criminal punishment system suit for China’s criminal justice is to realize that the specific violation system and its fine in oversea countries, and that the world trend isn’t to extending fine as Chinese scholar recommended, and that the legislative background why criminal fine regard as criminal penal system in different countries.Reviewing abstract above, the author thinks that there is no way to build proper criminal fine system adapt for China’s legislation and justice, if we cannot reconsider the fine system abroad and aim to construct meaningful criminal legislation and justice. The previous researches discuss deeply the theory of criminal fine, however, this article focus on the empirical studies. To be honest, there is a serious defect in theoretical analysis in the paper, especially the crime system and crime definition related to fine was limited to some narrow topics. The author still has to figure out more issues and theoretical analysis in future.