On Criminal Reconciliation

It is an new practice to apply reconciliation to criminal cases, especially in the public prosecution cases in China. The current laws allow reconciliation only in private actions and incidental civil actions, and reconciliation is forbidden in public prosecution cases. According to traditional criminal law theory, the parties settling the criminal disputes with reconciliation means challenging the public powers'exclusive control over the criminal disputes settlements, because public powers such as prosecution, jurisdiction can not be disposed by private persons in traditional criminal law theory. Consequently, there are many different opinions in criminal reconciliation. In judicial practice field, the forms of criminal reconciliation appear complex and flexible, some of which have not been accepted by law, but it is inevasible that criminal reconciliation flourish in civil life and judicial practice. Criminal reconciliation in this dissertation is a kind of criminal disputes settlement: offenders try to obtain the victims'forgiveness by compensation, apology and other forms, and the authorities may not investigate the offenders or give them lenient punishments. This dissertation focused on criminal reconciliation in formal criminal procedure, compared the related concepts, discussed the spirit of criminal reconciliation, looking back the history of the development of criminal reconciliation, discussed the rule dominating reconciliation's whirligiging in history. Then, this dissertation discussed the theoretical bases of criminal reconciliation from different angle of view and the interaction between criminal reconciliation and the criminal theory. Finally, this dissertation pointed the elements of criminal reconciliation and gave suggestions on how to construct the criminal reconciliation system .The paper is divided into three parts: Introduction; Straight matter(six chapters); Perspective.Introduction. How after penalty? This part started with the worldwide problems such as the crime waves on the upsurge, overcrowding prison, the disillusionary effect of criminals corrections and so on, and concluded the three problems facing on the Chinese criminal procedural system. To solve these problems, Chinese and foreign scholars begin to rethink the role of penalty and the simplex purpose of the criminal justice, and give many suggestions, including depenalization, light punishment, correction system reform, community corrections, establishing national compensation system for victims of crime, etc. Criminal reconciliation begins to be focused on as an attentioned countermeasure.Chapter 1. The concept of criminal reconciliation. This chapter attempted to define the connotation, features, characters, functions, and pointed out the two angles of view: criminal policy and folk law, on which brought forward the three viewpoints about justice different from traditional criminal justice: justice of agreement, justice of compensation and justice of cases.Chapter 2. The history of criminal reconciliation. This chapter looked back the history of the development of criminal reconciliation, focused on criminal reconciliation in ancient China, latter-day China and in modern westworld. On this basis, the rule dominating reconciliation's whirligiging in history was discussed. The development of criminal reconciliation can be explained by the rule of"thesis-antithesis-synthesis"found by Hegel. If private remedy including reconciliation can be looked as a obverse process of criminal disputes settlement, the Trial-Penalty which is in popular in the world afterward can be looked as the reverse of the private remedy. The revival of criminal reconciliation in modern time can be looked as the combination of the above two poles, through which a system goes toward rationality and maturity.Chapter 3. Theoretical bases of criminal reconciliation. Criminal reconciliation does not come from single theory or single discipline, on the contrary, it is a fruit from different theories and disciplines combining. Consequently, many viewpoints related to criminal reconciliation in philosophy, economics, psychology and culture were discussed in this chapter.Chapter 4. Interaction between criminal reconciliation and criminal theory. Some criminal theories supported the development of criminal reconciliation and some became its theoretical obstacle. At the same time, criminal reconciliation in turn affected the development of criminal theory. To be accepted widely, criminal reconciliation should justify itself. This chapter introduced the theories related criminal reconciliation in criminology, criminal law and criminal procedural law, such as label theory and crime typology and also answered some adverse arguments, then expatiated the interaction between criminal reconciliation and the propose, the mode and the division system of the criminal procedure.Chapter 5. Elements of criminal reconciliation. This chapter discussed the elements of criminal reconciliation, including its subjects, objects, application conditions, application scope, forms of the responsibility and reconciliation agreement. Many cases were displayed to compare the different opinions about these elements between China and westworld in this chapter, in order to do groundwork for the next chapter.Chapter 6. Construction prospect of criminal reconciliation. This chapter is the longest one in this paper. The status and features of the trial locations applying criminal reconciliation were firstly concluded, discussing the positive effects and the obstacles. Then suggestions were given on how to construct the criminal reconciliation system in China, including system construction, mode selection, criminal reconciliation in stage of the proceedings and the safeguard mechanism. The purpose of this chapter is to describe the construction prospect of criminal reconciliation in China.Perspective. Perspective tried to give anticipations for the trend of the Chinese criminal law through the analysis of criminal reconciliation. Two trends is the conclusion: in criminal procedure law, the division system of the criminal procedure tends to diverse and pretrial; in criminal law, penalty tends to moderate and the treatments to crimes tends to socialized. Criminal reconciliation was finally concluded.