The Perfection Of Probation System In China Under The Modern Judicial Idea

Modern judicial idea should have four attributes as follows. Firstly, rights should be protected equally, which means in the pursuit of the protection of the human rights civil rights should be treated equally. Secondly, that is due process of justice and openness which facilitates justice at the same time. Due process allows citizens take more participation into judicial activities while emphasizes the transparency of judicial activities. Thirdly, that is judicial process of economization and efficiency, which lays stress on efficiency on the basis of decreasing judicial cost as much as possible. Fourthly, that is the symphony of the judicial effects and social effects, which requires that judicature must emphasize the social order that forms by the efforts of judicial activities so as to realize the unity of legal effects and social effects.In the guidance of modern judicial idea, this dissertation reconsiders the probation in our state in both aspects of thoughts and practice and put forward the perfecting projects based on statistical data, preconditioning the rational understanding of probation. This dissertation is divided into five chapters. Chapter one introduces the general understanding of probation. Chapter two probes the origin of probation. Chapter three inquires into the rationale of probation. Chapter four reconsiders the current system of probation in china. Chapter five deals with the perfecting of probation system in china.Chapter One. The General Understanding of Probation: In this chapter, we point out such descriptive features of probation as the choice of criminal, the suspension of sentence with condition, the necessity of supervision, and correction, which constitutes the difference from other criminal systems such as remitment, the suspension of death penalty and protective control. Probation which was born in common-law countries was copied, transplanted and developed by continental-law countries. Common-law countries take the suspension of sentence as their legislative model while continental-law countries take the suspension of sentence as their legislative model. In the tendency of fusing this two family laws, there has derived comprehensive probation system which is regarded as a new kind of legislative model by long-term theoretical innovation and judicial practice. As far as the nature of probation, we disclose it, namely the nature in the phenomena——non deprivation of freedom, the unity of forms and contents——community correction and the tendency of necessity and actuality——the disappearance of crime and the symphony of society under the guidance of the methodology that is identifying natures and phenomena, defining contents and forms, and distinguishing necessity from actuality after summing up the arguments of the nature of probation. In order to broaden the depth and width of the theory of probation, we point out the functions of probation such as penalty, shock, reform, unity and correction.Chapter Two. The origin of probation: it is believed that knowing about the history of probation help understand the nature and the merits of probation and learn the difference of probation in different countries and predict the orientation of probation. In relation to the various arguments on the origin, it varies for the principles of judgment are different where some scholars take judicial practice as the principle while others the bear of law. Probation systems in different family laws which have different origins and traditions appear discrepancy, furthermore, the probation system in continental-law countries is independent from that in common-law countries. Therefore, we probe the origin in the two family laws respectively. In china, the term of probation was first found in the books of the Zhou Dynasty which didn't represent the modern probation system. It was one of the solutions of famine which had the meaning of mitigation of punishment. The probation system in modern sense in china was transplanted from the west. In 1891, probation system was provided in the new criminal law of the Qing Dynasty.Chapter Three. Rational understanding of probation: We inquire into the rationale of probation from the aspects of criminal policy, penal value and principles. Probation, as a penal system, is a passive evaluation for crime, which is probation's basic character. Probation, in the form of non-imprisonment, applies synthetically physiology, psychology and sociology to criminals for treatment and correction, which reflects the mitigation of punishiment which is the orientation of the development of criminal policy. Next, design of this system, with supervision and community correction in it, make society force become the reliance of correction and crime control which meets the requirement of the socialization of punishment. Finally, adjudication and execution of probation takes the danger of criminals as the principle which is in accordance with the individualization of punishment. Scholars in continental-law countries categorize the penal value into two kinds, one of which is karma, while the other is prevention. With the development of the thoughts of punishment, modern penal value appears the unity of karma and prevention, as a result of which probation arose. Taking the suspension of execution for instance, execution is suspended, but the criminal has been sentenced to be criminal which is s passive evaluation of crime, which means that it both realizes the function of probation that is karma and general prevention. Furthermore, execution is suspended in the test term during which criminals should accept supervision and correction which pursues the purpose of special prevention. Therefore, probation embodies both karma and prevention which is substantially based on penal value. Probation also incarnates the principles of modesty, economization and humanitarianism of punishment. After interpreting these principles, we try to find the melting point of probation and penal principles by which we evaluate the system of probation.Chapter Four. The Reflection on the Current System of Probation: In this Chapter, we take the statistical method to compare the probation system in some city in Liaoning province in china with the system in St Louis in Minnesota in the USA, which evokes the reflection from both aspects of thoughts and practice of the current system in china. In the aspect of thoughts, the current probation system falls into the predicament of penal emphasis thoughts and shortage of right-orientation, which at the same time is misunderstood by parties and the public. In the aspect of practice, problems arise in probation legislation such as the abstraction of applying condition, the monotony of types, the simple contents of supervision and the stiff regulation of repeal. In addition, there lacks of uniform rules of measurement and effective legal and social supervision in adjudication. There are also problems in the process of execution such as losing touch with the probationers which arises from unregulated deliver, the declining effects of execution because of slack supervision, and the abused probation fees. As regards these problems, solutions are proposed as follows: firstly, it is necessary to embody the applying conditions, diversity the types of probation, richen the contents of supervision, and make the terms of repeal clear in the process of legislation; secondly, it is proposed to establish the uniform measurement rules, power-power and right-power containing systems which are respectively legal and society supervision systems; thirdly, we think that judicial administration organs should take responsibility for the execution, give some suggestions for making up for the defects in the process of execution, clarify and explain the problem of probation fees which have attracted public attentions.Chapter Five. Perfection of Probation System in China: A series of new mechanics are inserted into the probation system which are personality survey, hearing, and community correction. Personality survey origins in America which has been developed into a mature system, however, it is applied in practice in china which exists lots of problems. As regards these problems, we put forward some suggestions for reference and conceive of personality survey in probation system. In relation to hearing, it exists in judicial practice before legislation. Based on experience in practice, we put these contentions right, analyze opponents'arguments, set forth some improving suggestions and frame a system for probation hearing. Probation, with the purpose of correcting criminals and bring them back to society, take community correction as its mode which distinguishes from imprisonment. Therefore, probation is designed to put probationers into communities who are supervised, corrected and helped by professional organizations and volunteers. After summing up current problems and experience, we further put forward the design of probation system centered by community corrections. It is believed that probation combined with these systems discussed above will have a better effect which are the perfection of probation on a higher point.