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Research On Restorative Justice Issue

Posted on:2012-12-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:P YangFull Text:PDF
GTID:1226330335959774Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Since 1970s, a new model of criminal judicature - restorative justice has been gradually developing in North America and Australia. Restorative justice is a new concept of justice that corresponds to revenge-type, and has aroused the concern of academics and practitioners both in domestic and overseas. In recent years , China’s people-oriented principle demonstrates clearly by the implementation of the criminal policy of combining punishment with leniency and the ideal of building a harmonious society. Furthermore, criminal settlement is closely connected with the restorative justice philosophy. Therefore, this paper focuses on interpretation of the connotation of restorative justice, drawing on the experience of extraterritorial and analyzing of the proceedings of restorative justice’s litigation and non-litigation from the theoretical and empirical level.This paper is divided into two parts. By ways of literature induction and contrast, the first part, as chapters of theory summarization and sorting, analyzes the connotation of restorative justice, its extraterritorial experience and practice, and the Enlightenment to us, including the first chapter to the sixth. The second part, as chapters of empirical analysis, gather information, ask and analyze problems by setting the case of intentional injuries as an example and choosing 25 people to visit and discuss, including Chapter VII and Chapter VIII.Chapter 1 is concerned with the basic theory of restorative justice. This paper starts from justice and extends the discussion of restorative justice after the legal interpretation of the philosophy of justice and thinking over the criminal justice. Then it defines the concept of restorative justice, value and performance. Next through comparing with the traditional criminal justice, analyzes its advantages and limitations in practice. Finally it is an analysis of core values criminal rehabilitation.Chapter 2 is the extra-territorial investigation of restorative justice theory. Selected six representative countries, it analyzes and compares with restorative justice theory on the following five aspects: the practice of restorative justice, the law applicable specifications, the object and scope of the implementation, the role and functions of participants, the case of its implementation of these countries.Chapter 3 focuses on the theory base of restorative justice in the domestic. From the integration of the civil and the criminal to the differentiation of them, and then to the limited integration, the domestic value of restorative justice is reflected in the interaction between the Criminal and Civil liability. Apparently crime is a serious infringement and civil wrong is in tort. Whether the Criminal and Civil cases have the inevitable separation or really clear distinction? Of minor criminal cases and juvenile delinquency cases, the author proposes the concept of restorative justice, that is, limited integration or fusion cross, observes the tendency of privatizing of public law from the perspective of Criminal reconciliation, and analyzes publicizing of private law from the trend of Criminal mediation.Chapter 4 focuses on the policy base of restorative justice in the domestic. By examining the policy base in foreign countries, this paper proposes the policy of combining lenience and severity in criminal justice,and in which the paper analyzs the current situation and future of restorative justice practising in China.Chapter 5 is an analysis of litigation use of restorative justice. By analyzing the repair-type model in foreign countries, this paper proposes the ideal model of restorative justice - an integrated model, and discriminates restorative justice’s application implementation in the four stages of criminal proceedings: investigation, prosecution, trial.Chapter 6 is an analysis non-litigation use of restorative justice. Through extraterritorially observing the non- litigation application of restorative justice and analyzing domestic development trend of non-litigation use, this paper points out that attention will be paid mainly in two aspects: people mediation and community corrections, and the specific way is the steering of criminal cases.Chapter 7 is an empirical question design of restorative justice. From an empirical point of view, this paper carries out specific research for restorative justice and selects representative crimes - deliberate injury cases as a sample. Firstly summarize the characteristics of the crime by looking into files. Then select 25 respondents and design different interview outlines according to the object and collect the information by visitations and discussion. Finally, sort out and summarize interview recorded data and text.Chapter 8 is an empirical analysis of restorative justice. The author divides 25 respondents into four groups and studies the difficulties in the real world from the following five aspects: whether there are similar provisions of restorative justice legislation, whether the practice of restorative justice, the use of criminal policy, the main body of restorative justice and in the resources integration. And at last this paper concludes that there exists the practice of restorative justice, such as criminal reconciliation and mediation, and the concept of restorative justice is positive, while needs to integrate resources.
Keywords/Search Tags:restorative justice, limited integration of civil and criminal, policy of combining lenience and severity in criminal justice, itigation, non-litigatio
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