Study On Criminal Reconciliation System

How to balance the major two objectives of protecting victim's interests and making the offender back to the society is a significant yet unavoidable task with respect to the criminal policies in each country of the present world. Based on the personal awareness of and sincere anxiety about various issues concerning the current criminal and Judicial, the author selected the criminal reconciliation system which boasts theory value and realistic meaning as the topic for the doctor's degree thesis to explore the idea pursuing, value implication and applicable terms of criminal reconciliation system and testify its validity and feasibility in terms of theory and practice respectively with a view to realizing criminal legislation and the balance between the aforesaid two major objectives in the judicial practice of our country as well. Undoubtedly, there is a growing interest in studying on criminal reconciliation and the exploration made in practice also increased a lot in the field of criminal law. However, the author found that studies on these aspects seemingly tend to be in the situation of disorder resulted from the lack of basic location of the criminal reconciliation in terms of criminal law, which leads to the absence of uniform common grounds about such basic issues as concept connotation, value meaning, applicable terms of criminal reconciliation system. With respect to the study on the criminal reconciliation system, this thesis aims to establishing the criminal legislation of criminal reconciliation system, employs literature research method, historical research method, comparison research method and case study method etc., conducts a detailed yet in-dept study on relevant theory of criminal reconciliation system and the present criminal Judicial, and forms a preliminary complete knowledge system ranging from conception defining and system setting up in order to provide intellectual support for the establishment of criminal reconciliation system in our country. Apart from introduction and conclusion, this thesis consists of six chapters. The explanation for the content is hereby given.â… . General Theory Studies on Criminal Reconciliation SystemFirst, the concept and connotation of criminal reconciliation system. There are two methods to understand the criminal reconciliation system i.e. from the concept level and from the system in reality. (â… ) Concept of criminal reconciliation from the concept level. By inspection and comparison, the author considers the basic concept of criminal reconciliation shall be that the Judicial shall be oriented for protecting the victim's interests with the goal of restoring the damaged and reconstructing harmonious interpersonal relations, and reconciliation may serve as the best means to realize this goal. Victim's interests-oriented concept stresses that the Judicial activity shall take the victim's interests and need as the basis to protect the balance between interests of the victim, that of the offender as well as the interests of community on this basis. The justice outlook of the criminal reconciliation shall be unoffending and enjoyed by all human beings; view of criminality of the criminal reconciliation refers to the fact that the crime damages the original harmonious relations between the individual victim, the whole community and the offender, and understanding, tolerance and assistance are appropriate solutions to reform the offender instead of compulsory punishment; view of responsibility of the criminal reconciliation defines the responsibility as to do the right things and rectify errors. Judicial law shall re-conciliate interest relations between the victim and the offender, and it's better to restore the relation in way of reconciliation. While reconciliation does not mean the unconditional objection to the punishment, and the applicable punishment shall be the last method. Restoration and reconstruction requires more participation of interested member. More interested members means greater attendance, and the achieved reconciliation agreement will play better part in restoring interpersonal relation with the more permanent guarantee for the result.The author views that community judicial is the necessary requirement of the criminal reconciliation system. As to this system, the final settlement principle of jurisdiction shall be existed as the fourth concept of criminal reconciliation. (â…¡) Concept of criminal reconciliation from the system level. The author holds the view that the criminal reconciliation system refers to a system in which after a crime is committed, the inure person gets the forgiveness from the victim by means of confession of the guilt and resipiscence as well as compensation for the incurred loss, and the victim suggests to grant a lenient criminal treatment which shall be confirmed by the judicial organ. The criminal reconciliation system shall be the criminal treatment system or criminal lawsuit system; The final power of decision about the offender's criminal treatment shall be reserved by the judicial organ which represents the state, instead of the victim involved; the result of the criminal reconciliation system shall be that the offender gets a more lenient criminal substantive treatment or criminal procedure treatment, not necessarily the termination of the criminal liability procedure; Criminal reconciliation agreement allows flexibility to be reached in terms of from on the basis of being legal and voluntary; The subject scope of the criminal reconciliation system is only restricted among the criminal injure person and the victim at the present, excluding that among the individual and the state.Second, historical evolution of the criminal reconciliation system. The author finds out that in the process of historical development, west countries or our country expand their use of criminal law to interfere with things, but the criminal reconciliation factor has never disappeared in our horizon and been existing in the bud or in uncompleted state of criminal reconciliation system. Modern criminal reconciliation system has become the world trend and is confirmed by legislation in many countries. A survey conducted by western countries on the actual effect on the following five aspects i.e. the degree of being satisfactory about the criminal reconciliation system which is showed by the party involved, execution ratio of reconciliation agreement, psychological treatment result, and re-committing crime and lawsuit effect explains that the criminal reconciliation system is superior obviously to the traditional judicial. Third, social background and source of practice. (â… ) Social background of criminal reconciliation restoration in western countries:failure of imprisonment and policy for correction, terrible waste of judicial resource; development of juvenile judicial theory and practice; promotion of victimology and movement for protecting the victim; upsurge of the reconciliation system; Emergence of community correction theory. The source of practice of restoration the criminal reconciliation in western countries has connection with three traditions. (â…¡) Social background of restoring the criminal reconciliation in our country:great background of building up socialism harmonious society; awakening of criminal victim's awareness of rights; In-depth development of criminal policy of being justice with mercy. The justice practice in which petty crime shall not be taken to the law is the source of criminal reconciliation system in our country.Fourth, criminal reconciliation system and its relation theory. To further clarify the connotation of the criminal reconciliation system, the author made a trivial comparison between the criminal reconciliation system and related concepts such as "solving in private", integration of criminal contract, defending proceeding transaction and Chinese traditional reconciliation system.II. Study on Value Connotation of Criminal Reconciliation SystemThe author made a brief introduction to the theory source of criminal reconciliation in western academic community, and explored in detail the value connotation and theory foundation of criminal reconciliation system from different perspectives of philosophy, politics, economics, sociology and ethnics.First, theory source of criminal reconciliation in western academic community. In the western academic community, there are "restorative justice thoery", "balance theory" and "narrative theory" to explain the basis of criminal reconciliation theory.Second, philosophy basis of criminal reconciliation system. Criminal reconciliation movement is the reflection of post-modernism thoughts in the field of criminal judicial in the west. Criminal reconciliation system represents fundamentally the human-centered idea and shows the recognition and guarantee of the subjective position of the party involved in the modern criminal law, and is conducive to the protection of legal interests of the offender as well as the victim. The concept of criminal reconciliation requires that criminal law shall insist on the respect and guarantee of individual self-determination and social autonomy in order to maintain necessary space for development in terms of order that is created automatically, which is even closer to the stand of rationalism of evolution theory.Third, political analysis of criminal reconciliation system. Social contract theory provides theory foundation for the existence of individual determination rights and social autonym rights in the criminal reconciliation system, and defines the scope for the punishment rights of party involved in this system. Theory of citizen society proposes to realize the good interaction between the country and the society, which is consistent with the idea in which the criminal reconciliation system shall allow the individual relief and social relief to play their part as much as possible in the witness of public force relief. The criminal reconciliation system maintains to attract social pubic people to participate in the settling process of crime cases, which is the concert reflection of participation system applied to the field of criminal law. The most direct requirement of principle of subsidiary applied to the field of criminal law is to respect the effective force of criminal reconciliation among parties involved.Fourth, sociology analysis of criminal reconciliation system. Profit gaining mechanism becomes the driver of the development of criminal reconciliation system. Society restoration capability is the tripping force for the criminal reconciliation system:the best method of controlling crimes is the self-control of society, while the criminal reconciliation system gives the function of self-control of society to its fullest; the criminal reconciliation system exercises the form of society relief and plays its full part for the complimentarily of private relief and public relief; the criminal reconciliation system insists on the execution within the framework of law, but not limited to employing all means beyond the law field to settle disputes and conflicts to realize the harmony in the society; the criminal reconciliation system settles disputes in a harmonious way of cooperation and win-win strategy and realizes the transformation of social governing method from the old modernity to the new one.Fifth, economic analysis of criminal reconciliation system. Pareto Optimality Principle and the justice idea of economics is consistent with the justice enjoyed by and unoffending justice proposed by the criminal reconciliation system. The marginal reduction effect of criminal punishment determines the non-economy of the traditional criminal judicial in which any crime must be punished. As to the criminal reconciliation system, economic solarium boasts good deterrent benefit. The criminal reconciliation system matches the principle of "benefit-cost and profit" better than the traditional judicial.Sixth, ethnics analysis of criminal reconciliation system. Through systematic criticizing and questioning, it proves that the criminal reconciliation system is conducive to protecting social profits, reflects the voluntary will of the party involved instead of "reducing the punishment with money", and will help to maintain social moral level and inhibit judicial corruption.â…¢. Criminal Reconciliation Corresponds to Basic Theory of Criminal LawFirst, criminal reconciliation corresponds to the basic principle of criminal law. (â… ) Criminal reconciliation system corresponds to principle of the legally prescribed punishment for a special crime. The criminal reconciliation system is able to correspond to the principle of relatively legally prescribed punishment for a special crime, because the relatively legally prescribed punishment for a special crime rules out the punishment to the criminal without purposes apart from protecting the legal interests of national citizens with a view to safeguarding the human rights of national people, which is inconformity with the value orientation of the criminal reconciliation system i.e. restricting criminal punishment rights and safeguarding human rights. Principle of the legally prescribed punishment for a special crime in our country does no include the so-called "active principle of the legally prescribed punishment for a special crime". The third provision of criminal law in our country stipulates that "Any crime stipulated by the legal documents must be convicted and sentenced according to the law", but it does not means that in case the action may be called a crime, the criminal must be convicted and sentenced according to the law which violates the stipulation of "proviso" clause in No.13 of the criminal law. Principle of the legally prescribed punishment for a special crime is just a passive method of convicting and sentencing, to such degree, the criminal reconciliation system does not violate the principle of the legally prescribed punishment for a special crime. (â…¡) Criminal reconciliation system is able to corresponds to the equal and applicable principle of criminal law. Meaning of the equal and applicable principle of criminal law:The equal and applicable principle of criminal law aims to pursue the equality of law in which the criminal is applied to, not the equality after the application of law or the uniform equality when formulating the criminal law; Such equality is relative and limited instead of absolute equality. From the following perspective, the criminal reconciliation system does not violate the equal and applicable principle of criminal law:the criminal reconciliation system provides the mechanism to protect on the basis of equality the interests of the victim and the offender within the scope of law; capability difference with which the offender forms the criminal reconciliation results from the non-equal issues beyond the criminal reconciliation system, not the non-equality of such system; equality applicable to the criminal law is a relatively one; criminal reconciliation system does not exist the unequal treatment to the offender when he or she violates the law; criminal reconciliation system is established for the offender who convicted the crime and had a wish to make correction, and the improvement of the corresponding supplementary facilities makes the strict term for getting criminal reconciliation surpass the economic terms (compensation); with respect to the substantive meaning, there is room for criminal reconciliation for any criminal disputes; the traditional criminal judicial is not able to realize "identical crime and identical punishment". (â…¢) Criminal reconciliation system is able to correspond to the principle of crime and punishment accordance. The reason that criminal reconciliation system could reduce the punishment committed to the actor lies in the reduction of bodily dangerous of actor and damaging scope of the crime. The criminal reconciliation system does not refer to "reducing punishment for the sake of money" or "equal money with equal punishment". Compensation with money is not the sole foundation for reducing the criminal liability and criminal punishment, and to pay the compensation is of property punishment content and compensation with money does not necessarily mean the reduction of punishment.Second, criminal reconciliation is able to achieve the goal of specially protecting the criminal punishment, because this system boasts the function of specially protecting the property punishment and is able to stimulate the moral sense of the offender so as to inhibit crimes. Criminal reconciliation system is in conformity with the requirement of passive general precaution and special general precaution. Criminal reconciliation system solves disputes and conflicts completely by effectively easing interpersonal relations, which is better for realizing the function of social precaution than traditional judicial. Criminal reconciliation system reflects the function of punishment made to the criminal and boasts the effect of criminal punishment social protection and social integration.Third, criminal reconciliation can meet the need of criminal policy. criminal reconciliation system is a reasonable criminal policy in itself; criminal reconciliation system can represent the spirit of criminal policy i.e. humanism; criminal reconciliation system is able to implement all round the criminal policy of being justice with mercy; criminal reconciliation system can reflect the criminal policy of probation to the maximum; criminal reconciliation system can represent the concept of Criminal Tri-tiered System; criminal reconciliation system can implement completely the criminal policy of getting lighter sentence by telling the truth.Fourth, criminal reconciliation system can correspond to the basic theory of criminal procedure law. Criminal reconciliation system represents the contract idea of "free selection and consensus " which is the reflection of procedure democracy; criminal reconciliation system corresponds to the requirement of procedure justice; criminal reconciliation system can reflect the procedure benefits; criminal reconciliation system can stand for the harmonious value of procedure; theory of procedure subjectivity supports the criminal reconciliation system; Criminal reconciliation system does not violate the principle of normal procedure.Fifth, criminal reconciliation mode can correspond to the traditional judicial form Criminal reconciliation system is a new solving mechanism within the present criminal judicial framework and makes correction to the part of the system of current criminal judicial, which is not the fundamental negation to the present criminal judicial mode. The current criminal judicial mode can accept the criminal reconciliation format.â…£. Terms for Establishment of Criminal Reconciliation SystemFirst, concept terms for the establishment of criminal reconciliation system. Chinese traditional culture outlook provides cultural base for the criminal reconciliation system:harmonious culture becomes the national culture meanings for the establishment of criminal reconciliation system;" no-lawsuit" concept is the concept support for the effective operation of criminal reconciliation system; the spirit of benevolence of Chinese traditional law culture supports the tolerant philosophy of criminal reconciliation system; the spirit of compromise to citizens of Chinese traditional culture supports the philosophy of community governing of criminal reconciliation system; the practical rationality of Chinese traditional culture supports the philosophy of respecting individual interests of criminal reconciliation system; Chinese traditional value outlook on lawsuit provides idea support for the criminal reconciliation system. General people's idea provides social psychological terms for the criminal reconciliation system:consideration of acquaintance provides necessary psychological terms for accepting for the establishment of criminal reconciliation system; market economic idea publishes the awareness of lawsuit transaction for criminal reconciliation system; the practice result of civil reconciliation system wins social psychology recognition for the criminal reconciliation system; many phenomena of "one-self action" and "settlement in private" provide social and psychological expectation for the establishment of criminal reconciliation system.Second, system terms for the establishment of criminal reconciliation system. Political terms for the establishment of criminal reconciliation system:establishing the common basis of humanism shared by the harmonious society and criminal reconciliation system; harmony and justice are the common ideals for establishing harmonious society and criminal reconciliation system; criminal reconciliation system is one of the specific method of practicing and establishing the philosophy of harmonious society; the current criminal judicial system provides political guarantee for the establishment of criminal reconciliation system. The law terms for the establishment of criminal reconciliation system:the current law system in our country shows sign of criminal reconciliation in itself; criminal reconciliation gets buds in the judicial practice; the relatively response capability of the criminal judicial provides enough law space for the criminal reconciliation system.Third, practice terms for the establishment of criminal reconciliation system. The criminal reconciliation system provides interests driver for itself; society in our country boasts the material and technological terms for establishing the criminal reconciliation, and our traditional regulatory mechanism and the mediation network spreading in our country provides organization base for the criminal reconciliation system.V. Applicable Study on Criminal Reconciliation SystemFirst, applicable principle of criminal reconciliation system. including the principle of equality and voluntariness, legal principle, principle of judicial confirmation and principle of non-damaging state judicial rights, the principle of orienting the protection of interests of the criminal victim, principle of equal protection, principle of justifiable procedure and principle of reconciliation and tolerance.Second, applicable terms of criminal reconciliation system. This part summarizes the subject terms, action terms, criminal system terms, subjective terms, evidence terms that are applicable to the criminal reconciliation and proposes that the applicability of criminal reconciliation system is not confined to crime that offends individual legal interests and the launch of criminal reconciliation system is not necessarily accepted by the offender and the victim with their consent to the mediation.Third, applicable stage of criminal reconciliation system and mediator. by learning from the applicable stage of western criminal reconciliation system and the mediator system, this part holds the view that the criminal reconciliation system in our country can be applied to each stage ranging from case-filing to execution and that the neutral social organization determined as the mediator by the criminal reconciliation system is most appropriate. However, in consideration of respecting the autonomy of the party involved and current actual situation of our country, it views that self-reconciliation shall be allowed, and other individuals and units including judicial organ are allowed to be mediators.Fourth, party involved in criminal reconciliation and other people participating in the mediation. On the basis of learning the practice of western countries and occasion of taking the mediation mode of the victim and the injured person as the subjects, this part holds the view that our country shall adopt suitable applicable mediation mode, flexibly determine scope for the party involved in specific mediation procedure and other people participating in the mediation in accordance with specific information about the case.Fifth, effective force and result of criminal reconciliation agreement. This part discusses in detail the civil legal result and effective force of criminal reconciliation agreement, criminal law effect and result of criminal reconciliation agreement as well as the influence of the involved party's regret on the reconciliation agreement and the legal consequence of the case.â…¥. Conceiving Establishment of Criminal Reconciliation SystemFirst, criminal legislative conception of criminal reconciliation system. With respect to the specific establishment of criminal reconciliation system, the criminal law in our country proposes that general stipulation of criminal reconciliation system shall be added to, and apart from provisions of conviction and punishment, execution of criminal punishment and death penalty limitation, non-imprisonment shall be set up and the execution and supervision of non-imprisonment of criminal punishment shall be reinforced. The specific establishment of criminal reconciliation system in our country suggests that " Criminal Reconciliation System" shall be added to the first compilation as chapter 8, following chapter 7 "Incidental Civil to Criminal Proceeding" and that the general stipulation about common and basic content of criminal reconciliation shall be made. In terms of those special contents that are not able to be uniformly stipulated, corresponding stipulation of criminal reconciliation shall be supplemented in each lawsuit stage of criminal procedure.Second, establishment of relevant supporting measures of criminal reconciliation system. The first measure is the supporting measures of criminal law, to be specific, to establish personality investigation system, to add types of non-imprisonment, to set up guarantee fund system of criminal reconciliation, to change unreasonable evaluation mechanism of judicial organs, and to expand the prosecution and supervision power of procuratorial authority in the criminal reconciliation system etc.The second is the supporting measures of criminal procedure law, and the safeguarding system of victim's rights shall be established. For instance, to strengthen the procedure position of the victim and safeguard his or her procedure rights, to establish the social security system to protect the victim, to propose to improve the property preservation system of criminal action combined civil action and so on.The third is the administrative supporting measures, for example, to speed up the cultivation of various non-governmental organizations and mediation organizations, and to accelerate the construction of communities. It is advised to loosen the limitation to the system of various non-governmental organizations, to promote the degree of government assistance and support; to actively foster mediation organizations, to standardize mediation procedure; to accelerate the construction of communities, and to improve the cause of correction in communities.