The Study On Criminal Execution Act

Socialist law-ruling requires integrity, unity and harmonization of the criminal law system. The criminal substantial law and criminal procedural law are almost perfect, but the criminal execution law is relative weak and the content and system of the law are imperfect and unscientific, which results in the block of the development of the criminal law system.Both the theory field and judicial practice circle hope to enact a uniform criminal execution law; From the view of the practice,enacting criminal execution law has important practical value. The article will debate the theoretical problems and practical issues of the criminal execution law in order to consolidate the criminal execution law and rules。The Ph.D. dissertation consists of four chapters, total 118,000 words.Chapter 1 introduces the basic theoretical problems of the criminal execution law. The first section discusses the concept and the features of the criminal execution. The features of the criminal execution include the universality of the citizen rights,the speciality of the execution subject,and the complexity of the criminal execution procedure. The second section suggests that criminal execution has three values, including justice, humanism and efficiency. Justice value means the rationality of criminal execution, equality of criminal execution, publicity of criminal execution, participation of criminal execution and due process etc.. Humanism value means that the criminal should receive humane treatment, the manner of criminal execution should be reasonable, civilized and scientific etc.. Efficiency value means the reasonable collocation of the execution resources, proper execution term and appropriate execution manner etc.. The third section discusses the subject of the criminal execution. There are three subjects of the criminal execution in China:the first is the judge,the second is that the judge participates in the criminal execution; the third is the other organ has the power of the criminal execution. The mentioned situation of the execution subject results in many problems in the practice of current criminal execution.The integration of execution system is one of the important solution.The fourth section debates the procedure of the criminal execution, which the subject of the criminal execution must obey in the process of carrying the effective judgement into practice. The procedure of the criminal execution is the procedure of realizing the effective judgement an that of operating the criminal execution power. The procedure of the criminal execution includes the procedure of delivering execution, the concrete procedure of the execution, the alteration procedure of the execution, the supervision procedure of the execution; The procedure of the criminal execution should obey the immediate delivery rule, the writ delivery rule. The concrete procedure of the execution should strictly follow the basis of the execution,protect the legal right and interests of the executed, obey the principle of enforceable execution according to law and public execution according to law etc.. The alteration procedure of the execution means the legal procedure of altering the execution place or content when the new situations appear during the criminal execution. The alteration procedure of the execution includes the procedure of finding or reporting new situations and the procedure of altering the content of judgement and the place of the execution. The supervision procedure of the execution means the procedure of supervising the illegal action in the term of the execution.The illegal phenomena in the execution include the two situations:one is that the subject doesn’t strictly obey the execution basis and the subject infringes the legal interests of the executed. The fifth section examines the development history of the foreign countries and China. In ancient China, the legislation of the criminal execution has the trait of combination of all laws. The execution subject is also the administrative officer because the justice organs did not distinguish from the administrative organs. The criminal punishment in ancient China was flexible, which was different according to the position of the criminals, for example, in Tang Dynasty, the criminals from the royal family were not punished according to the normal criminal law, and they were encaged in their house or the other special places. Remarkably, the barbarism and the civilization co-exist in the ancient criminal execution, so do the humanitarianism and anti-humanitarianism. But as a whole, with the development of the society, especially the modernization of the criminal execution, the brutal manner of criminal execution gradually disappear and the civilized manner began go play a leading role. In the foreign countries, the earliest legislation of the criminal execution may be《Hammurabi code》of 1798. Similarly, the criminal execution in ancient foreign countries was extremely cruel, the aim of the criminal execution was to retaliate, the punishment is unequal, etc..In modern, because of the influences of renaissance, religion innovation and enlightenment movement, the development of the criminal execution system has the following Tendency:the punishment is more light, fine penalty is applied widely, the model of execution is socialized, grading treatment of criminals is intensified, executing ensurement is promoted,the idea of restorative justice expands and the minors are protected specially.Chapter II Study on Criminal Execution Laws of Foreign Countries.Part one of this chapter sums up the legislative models of criminal executions laws of foreign countries in two models:one is the integrated model of substantive law and procedural law, which take Great Britain and France as representative. Legislations of criminal execution laws in Great Britain largely in Prisons Ordinance and Law of Criminal Justice, and in France are the related chapters of the French Code of Criminal Proceedings. The other model is a separate one, which take Germany, Denmark and Russian as representative. Russian Code of Criminal Execution Law basically has two parts:general principles and specific provisions. In general principles, there are provisions of the mission and the principles of the criminal execution, provisions of the structure and contents of the legislation of criminal execution, provisions of the relations of the legislation of criminal execution and international law stipulations, provisions of legal force to the condemned servicemen, provisions of legal force to the space and time, provisions of the grounds for the criminal execution and other criminal process, provisions of the fundamentals of the criminal execution, provisions of the rehabilitation of the condemned and the ways of rehabilitation. The specific provisions contain seven volumes, which mainly relate to the specific execution of the various crimes including the execution of the criminal penalty of non-separation of the condemned with society, the execution of penal servitude, the execution of deprivation of freedom, the execution of punishment to the condemned servicemen for decommission, detention, military discipline, the assistance of supervision of the released, the execution of death penalty, the surveillance of the prisoners. Penalty systems all over the world fall into three types:unitary, binary and trinary. Part two of this chapter mainly studies on the legislations of the criminal execution of Great Brain, Denmark, Germany, Russian and France, and introduce some rules in these countries of penitentiary sentence, non-penitentiary sentence and alternations in execution. On such base, the features and patterns in these countries are found out as scientization of the ways of execution, humanization of execution idea and practice, socialization of criminal execution rules, codification of the legislation of the criminal execution. The practice and experience of these countries are quite helpful to our legislation of criminal execution. Part three of this chapter summarizes the common features and patterns of the legislation of the criminal execution in the above countries, such as the trend to making laws of uniform criminal execution, the fundamental target of the criminal execution to be crime correction, scientization of the ways of execution, socialization of criminal execution rules, which can inspire China to correct the guidance idea, to reform the operation of power, to optimize the rules and to improve the relief framework.Chapter III Research on the Present Condition and Problems of Our Local Criminal Execution Laws of Foreign.Part one of this chapter focuses on the problems of our present criminal execution system, which include lack of levels of legislation, lagging of legislative idea, lack of authority in legislation, dispersion of legislation in form, duplication and contradiction in contents, simplification of articles, shortage of rules. Our present criminal execution system has problems with confounding of decision-making organs and execution organs, disharmony of the function, crossing of execution organs, lack of supervision to the reformatory education of the criminals, irrationality of level and classification of prison, singleness of execution in prison, lack of authority of supervision of criminal execution, lack of operability, lack of means to discover and correct illegal activities, incomplete objects of supervision, and furthermore, prominent problems in practice of probation, abatement from penalty, release on parole, punishment against property, community corrections.Chapter IV Conceptualization of Our Uniform Legislation of Criminal Execution.Part one of this chapter mainly discusses the principles of legislation, which include the principle of rationality, the principle of democracy, the principle of the integration of transplant and inheritance. Part two of this chapter devises the structure and contents of our criminal execution law. For the general structure, this Criminal Execution Law shall include general principles, specific provisions, and supplementary provisions. The general principles shall contain the mission, the targets, the fundamental principles, the execution body and the assistance institution, person subject to enforcement and his legal status, act of execution and supervision of execution. The specific provisions shall cover the execution of criminal penalty including the execution of non-penitentiary sentence, the execution of penitentiary sentence, the execution of death penalty, alternation of execution and supervision of execution. The execution of non-penitentiary sentence shall contain the execution of punishment of control, deprival of political right, penal sum, confiscation of property and probation. The execution of penitentiary sentence shall consist of the execution of penal servitude, fixed-term imprisonment, life imprisonment. The execution of death penalty shall contain immediate execution and suspension of execution. The alternation of execution mainly concerns release on parole and abatement from penalty. On such base, the rest focuses on the contents of the criminal execution law. The fundamental principles of the criminal execution shall embrace the principle of humanization, the principle of individuation, and the principle of socialization. The author holds that we shall adopt the unitary system of the criminal execution in order to avoid the waste of execution resource. Part five of this chapter comes up with some legislative suggestions for penitentiary sentence, non-penitentiary sentence and alternation of execution. Part six of this chapter addresses on supervision of criminal execution and talks over the disposition of power of supervision to criminal execution.