The Situation And Countermeasures Of Fine Unenforceable

As a penalty with long history, fine origins from primitive society's compensation system and is left in the cold in a long time by the legislators and judiciaries. With society's progress and concept of penalty renewing, non-custodial penalty applies to raise gradually, all the country in the word attention to fine again. Not only the scope and object of fine have been expanded, but also it is a tend that fine will replace imprisonment as the center of penalty system. By the impact of international criminal law' development, the criminal law of our country which has been amended in 1997, has more than 180 fine provisions and the scope of fine expands greatly; compare to the criminal law of 1979, the criminal law of 1997 changes "could sentence fine" to "must sentence fine" and it makes the application of fine become rigid, the law also creates the system that could execute fine at any time in order to maintain the authority of the execution of fine and ensure the debt that crime owes to the country can be performed completely. However, those changes above do not bring the expected result to our society, the situation of fine unenforceable become serious more and more. Why it is so and what can we do? This article attempts to answer these two questions.The article is about 40,000 characters, composed of four parts except the foreword and conclusion.Part I is an introduction of fine and the situation of fine unenforceable. Firstly, fine is defined as a penalty which deprives crime a certain amount of their money. Secondly, we believe that fine have two functions: one is to punish misdemeanor, the other is to add penalty's seriousness. Fine also have dual nature: on one hand it is a penalty, on the other hand it is the debt in public law. Thirdly, fine unenforceable which means the court imposes fine to offenders but is not able to execute it. It has two types. One is fine can not be executed for a while; the other is that the execution of fine is impossible. We also called the former that "difficulties in the execution of fine". Lastly, we analyze the harm caused by fine unenforceable.Part II is the important of this article, we analyze the reasons for fine unenforceable from the criminal law,enforcement authorities and crime. The legislative reasons include four aspects: the scope of fine is unreasonable,some problems in fine's design,the rules of fine discretion is not clear and the provisions of fine's implementation are too easy. The reasons for enforcement authorities are that the judge and court look down on fine execution,the court benefits in the implementation of fine and lack of available resources. The crime reasons are that it is difficult to distinguish between personal property and their family property and the crime have no money to pay.Part III is to comment some measures theory circle and practical agent advance to resolve fine unenforceable. We hold that "Advance Pay of Fine" can be explained reasonably with the theory of debt in public law, but this explanation is impossible to be accepted by the suspect,the accused and their relatives and friends, so this means must be used carefully. An opinion considers that it is useful in inhibiting the conduct of escaping criminal fine maliciously by judging as "crime of re-pudiate of judgments of courts". Our attitude is this suggestion sounds reasonable but cannot resolve the problem. Somebody suggests to set up fine probation system, but we also consider it is not the best solution, because firstly ,the conditions of probation system apply to all the people sentenced to fine; secondly, it is difficult to ascertain what should be do in probation period.Part IV is to put forward countermeasures according to the reasons we analyzed, this is also the important of the article. In order to solve the problem on legislation, we should adjust the scope of application of fine,improve the way of application,clear the rules of fine discretion,set up a conversion standard between fine and penitentiary sentence. We also ought to change the judge and court's wrong recognition on fine,reform the fiscal policy of enforcement authorities,rationalize the relationship between original court,jail and the court where jail is locate on. At last, we point out it is best to transform fine into imprisonment against person who escape fine maliciously and turn fine into labor against person who have no ability to pay the fine.