On Comparing Theory Of Suspension Of Sentence Between America And China

The suspension of sentence refers to the kind of condition that perpetrator is condemned certain penalty's criminal offender, in certain period latter, and it comes to pay tribute the condition which doesn't not carry out the original sentence penalty's system temporarily. USA,as the suspension of sentence system's place of origin, already has formed a set of consummations in 140 remaining years of life's judicial practices, and the effective suspension of sentence system . Besides, suitable rate is high and the social effect is obvious. Compared with USA, the research of our country's suspension of sentence system is much later. In judicial practice, the applying rate is also low. Based on this, the author uses the comparison research method, introducing American and our country suspending sentence, and attempts to provide the following advice, including probation type, applicable scope, substantive condition, exception condition, inspection system as well as cancellation system. This article is divided into five parts:First, comparing probation system type. This part compares probation system between America and our country, and draws the following conclusion: (1) it is quite reasonable for the American system that the perpetrator is announced guilty and then he or she is delayed to enforce punishment., because this suspension of sentence type will not take the crime record for the criminal offender, which has fully manifested penalty's education transformation function. It is worth use for reference by our country; (2) expand the he applicable scope for the kind of perpetrator who is announced guilty and is delayed to enforce punishment according to some strict conditions.; (3) apply various probation system type according to some conditions in view of the different perpetrator which has its certain rationality, and it is also worth introducing in our country.Second, the suspension of sentence is suitable the system comparison. Through the suspension of sentence applicable scope, This suspension of sentence is suitable to the essence condition and the exception condition and so on . Three aspects carries on the comparison, draws the following conclusion: (1) China and US will suspend the applicable sentence scope which defines them as not serious crime; The difference lies in the concrete applied code, the US limited to is condemned the perpetrator who below 6 months imprison the punishment, but our country is condemned to imprison with three years below set term of imprisonment's perpetrator; (2) US, in appraises the perpetrator whether to be suitable time the suspension of sentence has introduced the personality investigation system, is mainly according to its crime plot and the repenting performance, can forecast that well the author violates the possibility again. Therefore, our country's suspension of sentence is suitable must introduce the personality investigation idea.Third, suspension of sentence inspection system comparison. This chapter from the suspension of sentence test time, the suspension of sentence inspection institution, the probationer carries on the comparison in probationary period's right and voluntary these three aspects, draws the following conclusion: (1) US's suspension of sentence test time is one is clear about, the concrete time, our country stipulated that a test sector decides after deliberation freely for judge, is suitable the different suspension of sentence time test on the different perpetrator, therefore is more reasonable; (2) the US suspends sentence the inspection is carries on by the special suspension of sentence organization, but our country inspects by the Public security organ, coordinates in the unit or the Basic-level organization. In the judicial practice, the Public security organ special personnel have not been responsible to the probationer carry on the surveillance and the inspection, the law also do not have explicitly the stipulation concrete inspection procedure, therefore suggested that our country sets up the special suspension of sentence inspection organization; (3) the US suspends sentence the inspection content to strengthen through the refinement rule to probationer's correction, the suspension of sentence inspection content which our country stipulated is quite general, has many problems in the judicial practice.Fourth, suspension of sentence cancellation system comparison. Our country and the US as a result of the suspension of sentence inspection content stipulation's difference, also have the big difference in the suspension of sentence cancellation aspect: (1) our country perpetrators in test period was discovered that the commit has the new crime or the discovery has leaks the crime, no matter its crime nature, the crime type, how the crime form, all do abolish the suspension of sentence. The objective harm which this procedure only pays great attention the author to implement the criminality which creates, but did not consider that author's subjective malignancy, is obviously leaves contrarily with penalty's individualizing principle; (2) our country stipulated that probationer in suspension of sentence test period does not observe the laws and regulations, when achieves certain order of severity, may abolish the suspension of sentence; "Is serious the concrete standard regarding the circumstance" to have the highest Judicial organ to make the judicial interpretation, is advantageous for in the judicial practice to have a legal basis.Fifth, the comparison conclusion—consummates our country's suspension of sentence system. Our country's suspension of sentence system in legislates and in the judicial practice exposes many malpractices, therefore urgently needs the consummation: (1) consummates our country's suspension of sentence type and the suspension of sentence applicable scope. The addition penalty postpones the announcement system, the expanded general suspension of sentence and the special suspension of sentence suitable object; (2) We must increase the consideration criminal offender personality aspect the content; (3) the suspension of sentence inspection institution may to the court suggest that lengthens or shortens suspension of sentence test deadline; (4) we should set up the special suspension of sentence inspection institution; (5) consummates our country's suspension of sentence inspection content: (6) consummates our country's suspension of sentence cancellation system.