A Study Of Accessory Punishment

Crime and punishment, as a couple of a basic category in terms of the criminal law, have both constituted the object of study. However, in terms of the crime and punishment alone, this twin has not been treated equally without discrimination in the criminal law study circle in our country in that it is a self-evident fact that the study of crime has drawn wide attention while that of punishment left out in the cold. Whereas lengthy monographs and tremendous amount of papers on crime constitution and criminal liabilities dazzle the eyes, those on punishment forms a sharp contract, resulting in the fact that the status of punishment has gone down dramatically in the theory system of the criminal law. As for the accessory punishment, it occupies a subordinate position in comparison with the principal penalty in terms of status and nature. It is obvious that the accessory punishment falls into the category of light punishment in terms of the severity of penalty. Therefore, the accessory punishment has not drawn due attention in terms of theoretical study, judicial practice from the legislator, the judicial circle, scholars, and the public, or even from the perspective of the convicts. In recent years, although more works on the study of the accessory punishment have been published and the judicial administration has paid more attention to the accessory punishment, especially to the application and execution of amercement, the annotation of corresponding works is full of s strong colour of jurisprudence, which has hindered the depth of theoretical study to a certain extent. In addition, the judicial practice of the reform in punishment remains at the level of local judicial administrations, leading to no universality and authority. The reform in the accessory punishment is even in the stage of exploration.In the light of the present situation of the study of the accessory punishment and judicial practice, the author incorporates the crumbs of disputed issues which seem minute and short of final conclusion in the course of his work and practice. Moreover, adhering to the style of uniting theory with practice, the author attempts to explore the area of the study of the accessory punishment by utilizing the opportunity of writing the dissertation with a view to contributing his own efforts to the criminal penalty, especially to the theoretical development and judicial practice of the accessory punishment in our country.I. Characteristics of this dissertationThis dissertation is noted for four characteristics from the innovative point of view as follows:1. Original theme. It is mentioned hereinbefore that the theoretical study of criminal penalty is comparatively weak, especially there are few monographs on the accessory punishment, among which Sun Li's A Study of Amercement (published in 1995), Shao Weiguo's On Amercement (published in 2004), and Wu Ping's A Study of Capacity Penalty (published in 2000) are quite recommendable. Nevertheless, these monographs normally only deal with one aspect of the accessory punishment, e.g. the amercement or the capacity penalty. There are even fewer comprehensive and systematic monographs on the accessory punishment.2. Good reference. Firstly, there is little theoretical research in the accessory punishment, leading to few reference materials, thus this dissertation is of certain perspective value. Secondly, in terms of the comparison of the legislation on the accessory punishment, the author especially quotes laws of countries to which few scholars pay attention in addition to the criminal legislation of countries adopting the continental law system. In addition, the author selects laws of several typical countries in all the continents for reference, e.g. Vietnam, Mongolia, Singapore, the Philippines, and India in Asia; Nigeria and Cameron in Africa; Finland in Europe; New Zealand in Oceania; Argentina and Brazil in South America. Through consulting the criminal legislation, especially some characteristic provisions in these countries, the author incorporates the national conditions to propose that the amercement be upgraded to the principal penalty, the capacity penalty system be established, and the type of the capacity penalty be subdivided, which can be used as a reference for scholars as well as for the legislator seeking to amend and perfect the accessory punishment to a certain extent.3. Suitable for practice. The author has consciously accumulated quite a few disputed issues which seem minute and short of final conclusion thanks to the favourable condition of working in the forefront of judicial administration, e.g. the balance in the measurement of the amercement and the concurrent punishment of the deprival of political right. In terms of the judicial measurement of the amercement, the author suggests that the legislative defect i.e. there is no scope of the prescribed penalty for the amercement be avoid and the range of the amercement similar to that of the prescribed penalty be established with a view to restricting the judges' right to free adjudgment as well as to seeking the relative unification in terms of the ajudgment of the amcerment. As for the concurrent punishment of the deprival of political right, the author proposes that principles of absorption, merger, and confined aggravation be adopted according to the different kind of the penalty on which the deprival of political right is added with a view to achieving the rationality of the term of the deprival of political right. The in-depth and meticulous study of those practicable issues is of certain guiding significance for the judicial practice.4. Unique View. In view of the defects in terms of the theoretical study of the accessory punishment in the scholastic circle as well as the fact that some debated issues have neither come to any final conclusion nor drawn any attention in the theoretical circle, the author is forced to look for issues or to put forward his views on relevant issues. For instance, in terms of the amercement in exchange for penalty, in addition to the system of the amercement in exchange for the penalty of deprival of freedom, for labour redemption, and for reprimand in foreign countries, the author also suggests a buffer in consideration of our national conditions, i.e. the amercement in exchange for the administrative detention. In terms of the exchange of the amercement and the detention whose natures are different, apart from the exception of similar legislation in France, i.e. the amercement in exchange for the civil detention, there are few suggestions either in terms of legislation in other countries or in theoretical study.II. Structure and main content of the dissertationThis dissertation contains an introduction and the main body in eight chapters. On one hand, the introduction section stresses that the criminal penalty is of the same importance as crime and criminal liabilities in the whole theoretical system of criminal law in the history of development in theories on the criminal penalty, one the other hand, it incorporates the present situation of the study of theories on the criminal penalty in our country since its foundation and points out the backward situation of the theory and practice of the accessory punishment to express the cause, objective, and method of the author's study of the accessory punishment.The main body consists of three sections in general.The first section introduces the basic circumstances of the accessory punishment, including Chapter One "Outlines of Accessory Punishment" and Chapter Two "Historical Evolution of Accessory Punishment and A Comparison of Legislation in Various Countries". The author thinks that through the study of the concept, function, status and type of the accessory punishment, the accessory punishment in our country is divided according to the criteria whether it can be added to the criminal penalty instead of being divided according to the criteria whether the criminal penalty can be applied independently as is described in many works. Through an analysis of the "prejudice" adopted by the legislator in our country, it is stressed that the accessory punishment is independent of the principal penalty instead of dependant on the latter in terms of function and status. Thus the accessory punishment shares an equal status as the principal penalty in terms of the criminal law and plays a role of covering the shortage of the principal penalty as well as preventing redundancy of the criminal penalty. Thus the author calls on all circles to attach importance to the accessory punishment. Through elaborations on the origin and development of the accessory punishment and a comparison of legislation in various countries in terms of the accessory punishment system, applicable objects, methods, and the execution regime, the author enables others to have an initial perceptual understanding of the accessory punishment at all times and in all countries. Through an exposition on the significance in terms of separating the accessory punishment from the principal penalty, the author makes an in-depth analysis on the advantages and disadvantages of the accessory punishment system in our country with a view to providing materials for the elaboration on the legislative perfection of different varieties of the accessory punishment hereunder.The second section concerns the property punishment, including Chapter Three "Judicial Application of Property Punishment", Chapter Four "Execution of Property Punishment", and Chapter Five "Legislative Perfection of Property Punishment", which is a comprehensive elaboration on the judicial application, execution, and legislative perfection of the property punishment. Chapter Three and Chapter Four analyzes the present situation of legislation and puts forward countermeasures to address the numerous problems occurring in the judicial practice. For example, as for the extensive application of the amercement as well as the imbalance in the measurement of penalty hereunto in judicial practice, the author suggests that a corresponding range of the amcercement be established according to the different type of the amercement or the judge's right to free adjudgment be restricted and the amount of the amercement be uniformed relatively through studying the different models of the concurrence of the amercement and the principal penalty in terms of legislation, or by consulting the maximum amount of the administrative fine against similar offences so that it can be used as the minimum amount of limitless amercement. In addition, the author also puts forward his unique opinion on the balance in the measurement of penalty in terms of the amercement against special crime perpetrators, e.g. units and juveniles. As for the chaotic situation in terms of the expropriation of property in judicial application, the author maintains that two extremes, i.e. "misuse" and "difference" be avoided so that the application of expropriation of all property can be restricted and its scope be standardized. As for the lack of legislation on the execution of the property punishment, the author especially lays emphasis on the standard and fairness in terms of execution. On one hand, the author proposes countermeasures against execution within the existing legal framework, especially the establishment of the system of pre-trial investigation on properties as well as that of clues transfer; on the other hand, the author makes a pre-judgment on the violation of legal interests of a third-person or those of a recoveree which has not drawn any attention. The former is practicable and has already made certain effects in practice while the latter quite perspective. Chapter Five explores the legislative perfection of the property punishment. The author advocates that the amercement be upgraded to the principal penalty; meanwhile, it be applied with other principal penalties concurrently with a view to addressing the increasing need of expanding the application of the amercement in our country. As for the increasingly rampant organized crime, the author emphasizes that the expropriation of property which is little used in developed countries be retained. In terms of the legislative perfection concerning the scope and method of the application of the property punishment, the author maintains that according to the features of different property punishments, the application of the amercement, especially that against petty crimes, be expanded to a great extent while the expropriation of property be restricted. In addition, equality and consistency should be reflected in terms of the legislation on individual crimes. As for the legislative perfection of the property punishment execution system, the author holds that guiding cases in terms of legislation in relevant foreign countries be absorbed and the probation system, reduction system, and exchange system in terms of the amercement be introduced with a view to alleviating the worldwide problem of the difficult execution of the property punishment.The third section contains elaborations on the capacity penalty, including Chapter Six "Judicial Application of Capacity Penalty", Chapter Seven "Execution of Capacity Penalty", and Chapter Eight "Legislative perfection of Capacity Penalty". Similarly, the author again makes a comprehensive elaboration on the judicial application, execution, and legislative perfection of the capacity penalty to maintain the continuity of the dissertation as well as the consistency in terms of style. In view of the fact that the deprival of political rights is the most extensively used and the most representative penalty range in terms of the capacity penalty in our country, the author lays emphasis on the in-depth analysis and study of the judicial application and execution of this the accessory punishment. In terms of the relevant judicial application, the author points out that the rights provided by such penalty should be political, and should be differentiated from the corresponding rights in terms of the constitution through a comprehensive analysis and study of the nature and content of the deprival of political rights, which has set up a prerequisite for the correct application of such penalty. As for the concurrent punishment of the deprival of political rights, contrary to the view of unitary adoption of "merger along with absorption" and "limited aggravation together with absorption" advocated by .the scholastic circle, the author maintains that various principles of concurrent punishment be adopted according to the features of the range of the principal penalty. Moreover, the author proposes corresponding suggestions on legislation. In terms of the sophisticated situation concerning the probation and parole along with the deprival of political rights, the author also puts forward concrete countermeasures and makes a jurisprudent review of the official reply issued by the Supreme Court. As for the present situation of legislation on the capacity penalty, the author proposes a tentative idea in terms of the establishment and perfection of the capacity penalty system in our country, i.e. the introduction of the capacity penalty applicable to units. That means a capacity penalty system consisting of the deprival of public rights, the deprival of the qualification for a specific profession, deportation, the deprival of military rank, termination of business, restriction on business operation, and coercive abolishment should be established on the basis of the subdivision and standardization of the existing range of the capacity penalty. In view of the fact that it takes time to realize the tentative idea, the author again analyzes and studies the legislative conflicts in terms of the judicial application and the execution of the deprival of political rights within the existing legal framework, e.g. the arrangement sequence of the deprival of political rights in the provisions in the criminal law, the defect in combination, and the scientificalness in terms of the legislation concerning the accessory deprival of political rights for life with the death penalty. In addition, the author puts forward concrete countermeasures in terms of legislative perfection.