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Meritorious Service

Posted on:2010-12-05Degree:DoctorType:Dissertation
Country:ChinaCandidate:F JinFull Text:PDF
GTID:1116360272499109Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Being a particular means of penal discretion, Meritorious Service can be held as one of the important achievement of the present China Criminal Law. But owing to simplicity of the prescription of Meritorious Service and the complexity of legal practice, there is always controversy about Meritorious Service in the legal academic circle, which results in the trouble of the delineation of such rule, especially its healthy development. This dissertation starts from the history and development of Meritorious Service in our country, and then goes to the rethinking about its binary theoretical foundation (Utility and Retribution) by analyzing the value orientation of Meritorious Service. This dissertation talks also about the practical question of Meritorious Service, aiming to resolve the related problem found in practice, which includes the following four chapters:Chapter I concerns the development of Meritorious Service. By tracing back the origin of Meritorious Service and comparing it with related foreign legislation, the author proves that the so called"awarding system"can be seen as the principal historical foundation for the modern Meritorious Service. Specifically speaking, in Chinese legislative history, the birth of Meritorious Service is the practice of traditional awarding system. With the time going, Meritorious Service has went through a long way from zero to mature, from dependence to independence, finally becoming an important means of penal discretion. The same situation can been found in other countries'legislative development. Although not as comprehensive as Chinese counterpart, the Meritorious Service in foreign countries mainly focuses on the act and attitude after the criminal action of the offender. Judging from this, Meritorious Service in both China and other countries share the same core ideology.Chapter II is about the value orientation of Meritorious Service. There are some arguments put forward that the value orientation of Meritorious Service is contrary to the principle of justice and efficiency; contrary to the principle of fairness; contrary to traditional values, etc. On the other hand, Meritorious Service does no good for the compensation for the victims and gives birth to corruption in this area. Via the analysis mentioned above, there are lots of reasonable value demands found to be getting out of the dimension of the value orientation of Meritorious Service, resulting in the alienation of Meritorious Service in practice. Such alienation leads to doubtfulness from legal academy as to the existence of Meritorious Service. So the awarding system can be held as the intrinsic foundation of such kind of questioning, and the extrinsic foundation is the unhealthy judicial environment. Since the latter is nothing to do with the Meritorious Service itself, so it is nature for us to think that the only way we can reconstruct the Meritorious Service is to get rid of the traditional awarding ideology. The author argues we should try to find the rational limitation on utilitarian consideration of Meritorious Service, by doting which to reconstruct the value foundation of Meritorious Service and further, the legal practice of Meritorious Service. From this point, the principle of justice should be put more emphasis, which means the utility and fairness are actually unified: the former is the key and base, and the latter is the protection.Chapter III is about the constitution of Meritorious Service. Through focusing on the core of Meritorious Service, the author explains its characteristics and components. By reviewing related researches, the author points out those present legal materials are generally repeating the judicial interpretation of Meritorious Service, which lack theoretical explanation. This is to say that we should not be confined within the limitation of judicial interpretation, let alone the so called principle of legality. After such reviewing, the author names several important shortcomings of the present legislation, such as implicitly, variation, etc. As far as the author's concern, there should be at least four characteristics of Meritorious Service: Fairness, Objectiveness, Non-obligation and non- Unliterary. Besides, there should be five components of the Meritorious Service, such as the subject, the intent, the limitation, the act and the substantial requirement.Chapter IV talks about the discretion of Meritorious Service. In the author's perspective, the identification of Meritorious Service is the identification of the related thread of evidences. To a large extent, whether the informational origin of Meritorious Service is legal, and what its proving ability is mainly a judicial issue. The former is the legal qualification for why such information can be seen as the theoretical foundation of Meritorious Service, and the latter is about the practical value of Meritorious Service. Qualified information can be used to influence the penal discretion in judicial process, vice versa. So the author think from this way and summarize several standards to gauge the constitution of Meritorious Service, including the legal qualification of the information about Meritorious Service, the validity of Meritorious Service, the personal experience and the voluntariness of Meritorious Service. All in all, the Meritorious Service should never be short of fairness. For example, the author holds that disclosing each other between the offenders of the crime of bribe, information form the victims part and several other activities should not been seen as Meritorious Service. Further more, there should not be an anonymous attitude towards the purchasing of Meritorious Service. Besides, this dissertation mentions also the question as to the subject of Meritorious Service. The author argues that the subject of unit Meritorious Service can only be the unit itself, rather than the officer of this unit. As to the qualification of unit Meritorious Service, the key points is what is the means by which the unite collects the information of Meritorious Service and whether it is experienced itself. What's more, all the five basic forms of Meritorious Service suitable for individuals can be applied to the unit. And the authority quilted to make a judgment on Meritorious Service should be the court in principle, only in few exceptions, such as the prosecute branch chooses not charge the suspect, it is the prosecute branch to hold the authority.
Keywords/Search Tags:Meritorious Service, Utility, Fairness, Discretion of Meritorious Service
PDF Full Text Request
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