The Study On And Reference Of Private Commercial Participation In Criminal Justice In U.S.

Judged from chinese existing law, the concept of Commmercial Private Participation inCriminal Justice (hereafter refered to as CPPCJ) includes nothing. However, legal researchshould be guided by question rather than refrained by conception. How to add the methods torealize right and inhance human protection is a core question to which respond should makeby the chinese crimial theory. The system of Commmercial Private Participation (hereafterrefered to as CPP) is a distinguishing feature in U.S. crimial justice. The variety practice andsuccessful experience pravide us with beneficial reference. The author introduced the notionof commerce and private into study on criminal theory, and made a try to shft the perspectivefrom government to market to examine criminal justice, with the expactation to probe theprobably to problems in criminal justice in China through market.Apart from introduction and conclusion, this thesis consists of3parts and8chapters alltogether.Introduction In order to explain the topic selection of this thesis, the author firstlydrows out questions from case study. Secondly, the author points out the the wrongmethodology in the academic circle which leads them unable to solve the similar questionsdiscussed above, i.e. being limitted by the state perspective, and disregard the marketperspective, as well as failed to find the way out from outside of state organs. The study inthis thesis is a try to shft the perspective from government to market. Lastly, the authordefines the key words in this thesis such as crimanl affairs, crimanal private participation,commmercial private participation in criminal justice and so on.Part1is a narration, which gives a panoramic view of the the CPPCJ in U.S., andincludes chapter1, chapter2, and chapter3. Chapter1observse and studies the CPP incriminal investigation in U.S.from4aspects including the history, the relationship betweenthe Police and Pravite Detective, its function and the legal regulation to the Pravite Detectivein U.S.. Chapter2combs out the CPP in criminal coercive measure from4respects includingits history, reality, legal regulation and its function. Chapter3goes along the history venationof Private Prison, and tracks down the Private Prison in the early colonial period, and observse and studies the Private Prison between18centry and early20centry, as well asrecounts its development of the time.The creation and development of the CPPCJ in U.S., can be attributable to to the failureof public criminal justice system. The birth of Private Detective in U.S. was attributed tothe gap created by the police in modern times. The Commercial Bail overcomes the defectsof traditional bail, and increases the chances to get free for the arrestee when he can notprovides guarantor or afford the bail amount. The Private Prison makes the criminal justicesystem avoids the trouble of overpopulation in prison.Every CPPCJ in U.S. was praises and blames simultaneously from its creation. thePrivate Detective was once degradeed as "a legal anomaly, a constitutional contradiction","ahalf feudal armed forces "," at best a necessary evil, and at worst an inexcusable one".Bounty hunter was distorted as "a scurrilous life","uncontrolled threaten to civil right ".Commercial Bail was scolded as "exchange money for freedom "," discrimination againstthe poor and middle-income defendant","infringe upon the decision power of judge","causejudge corruption" and so forth. Meanwhile, the future of Private Prison was evenunpredictable because of "its guard lack of training", the scandal of "uhuman treatment withthe prisoner ", especially the conlusion made by General Accounting Office in U.S. that thereis no definite evidence that can prove the Private Prison is much more cheap than publicprison.Though huge barriers in its way, CPPCJ in U.S. grows valiantly and thrives regardlessof strong queried, and which constitutes a distinguishing feature of criminal justice in U.S..there are more than3000Private Detective agencies in America, and the member of PrivateDetetive(including private security) is more than1,600,000, which is3times the formalpolice member in America.The Service of Private Detective in America covers all aroundthe world, even envolved in official scandal and corruption cases. Its fuction ranges fromcriminal investigation, obtain defence evidence, as well as prevent crime. Therefore, the roleof Private Detective can’t be ignored in America criminal justice. Commercial Bail exists inmost states of America, and there are about8000bailsmen all together in America. Bailindustry is quite lucrative, reportedly taking in more than$4billion annually and "netting$400million a year in profits. The Bureau of Justice Statistics (BJS) found that in2006, commercial surety bonds were used in42%of releases for felony defendants in the75largestcounties. There were185Private Prison until July2001, and its population is285,000.6.8percent of the fedral and state prison population were imprisoned in Private Prison. It isreported by the media of America, the state of Arizona plans to held a public tender, for thePrivate Prison to bid for run9prison center. Therefore, it is a fact which cannot be disputedthat CPP has deep influence to criminal justice in U.S..Part2explores the foundation theory of CPPCJ, including chapter4,chapter5, andchapter6. These three chapters analyze the foundation of Political Philosophy, basis of legaltheory and economic basis respectively.Liberalism is the Political and Philosophical basis of CPPCJ. The long lasting liberalismand the tradition theory of weak state provide the soil for CPPCJ to grow. The Classicalliberalism flourishing in18century together with its theory of the state function as anight-watchman, constitutes ideological basis of the CPPCJ. With the decline of the Classicalliberalism from the beginning of20th century and the rise of Keynesianism in the1930s, thestate power augmented, which leads to a questioning and challenge to the CPPCJ. Then, withthe revival of New Liberalism in1970s, the industry of CPPCJ in U.S. recovered from thecrisis and revitalized. Therefor, its legality was confirmed.The theory of private remedy constitutes the legal basis to the CPPCJ. to examineminutely legitimacy of CPPCJ, we should return to the starting point to analyze therelationship between public relief and private relief. It shows in the long history of thedevelopnent of public relief and private relief that any gain for one must mean a loss for theother. The status of private relief in the relief system is from monopoly to being repressedand then to being respected, while the public relief from absence to repressing and then tomodestly restriction. there is not completely contradiction between private relief and publicrelief. As an effective supplementation to the public relief, the private relief functions as thetwig and extension of state power. The benign private relief is the act which being executedby persons out of the lowest self-protection when the public relief is absence or ineffective,and without hindrance to the society and can be acceptable. The nature of Private Detectiveand Commercial Bail is benign private relief. To confirm and develop the CPPCJ is a stategoverning tactic, and also a technique to realize social control through private activity. The most immediate theory that supporting the CPPCJ is economics of law. Theeconomics of law draws economic analysis methods into law science, which leads to manyconcept breakthrough. Ronald Coase initiated the thought to study legal right with relevanceto economic benefits. Gary Beeker applied the methods of economic analysis to all humanbehaviour. Posner set up a astronomical theoretical system of economics of law guided byefficiency. With the standard that rules should be examined by the theory of maximizingbeneficial result, the scholars of economics of law studied the Cost and Profit of all kinds ofrules, and infiltrated the economic princilpes to all rules and statutes. The widespread of thetheory of economics of law cleaned the way for the establish and sustainable development ofCPPCJ.Part3is about creating a system with Chinese characteristic of CPPCJ with thereference to America experiences. This part includes chapter7and chapter8, whichseparately argues the necessity of establishing the system of chinese Private Detective andCommercial Bail, and specificly conceive the new system.Similar to U.S., there are also failures such as lack of judicial resourses, inefficiency,being inadequate with respect to right protection. Such failures create opportunity to establishand develop CPPCJ in China. Chinese Private Detective existed in a flash in1990s. After theissuance of document No.91by Ministry of Public Security in1993, which forbids setting uporganizations similar to Private Detective agency in China, the Private Detective shits itsbusiness underground, survives on the margins of society. Its legal status is cloudy, withirregulation of conduct, and great risk. Though the Private Detective may make trouble forsocial management and cause society contradiction, its positive significance should not beneglected. The failures in obtaining of evidence by police, public procurators, defensecounsels and the persons involved, arouse the demand for Private Detective. The positivesignificance of Private Detective can be summarized as follows: to make up for a deficiencyof evidence obtaining by police, to oversee the judicial organs, to help the defendant inevidence preparation, to buildup the defendant ability to gather evidence. For the purpose ofthe creation of Private Detective, there should be a conception renewing, including (1) a newunderstaning of the state power of penalty, inter alia, to soft the notion of state power ofpenalty by modestly restriction of private relief, and to discard the notion that the state should monopolize the power of penalty.The operation of bail system in China is undesirable, which manifests as follows,(1) therate of bail is low because of being stictly understand the applying condition t;(2) Theapplicability of bail methods is poor;(3) the defendant who gain release through bail isuncontrolled. The effect get through Commercial Bail system in U.S. shows that CommercialBail may cure the bail sysem of China from its present disease, i.e.(1) poor bail rates ban becured by large release population in Commercial Bail,(2) poor of applicability of bailmethods can be cured by market ways in Commercial Bail,(3) poor in execution of bail cqnbe cured by effective supervision to the defendant by bail bondsman in Commercial Bail.Therefore, there should establish the Commercial Bail system in China. The constuction of abail system with Chinese characteristics helps us obtain guarantor through market, whichshift the mechanism of choosing guarantor from identity to contract, as well as from gratis tomarket. There is low cost to get bail and high risk to bail jump with respect to defendant inthe new system, and it can transfer cost, spread risk with respect to judicial organ, which helpto diminish the worriness about expansion release through bail.The following is the basic conformation of Chinese Commercial Bail recommended inthis thesis:(1) The commercial guarantor should be permitted to provide guarantee servicefor profit in the operation of bail;(2) commercial guarantor can be an insurance company oran individual person who is approved to take the guarantee business;(3) the guarantor shouldsign contract with the warrantee, in which the warrantee with the obligation to pay the bailpremium or collateral, and promise to abide by the conditions made in the bail document, aswell as authorize the guarantor with supervising power over him, and in case of his bail jumpthe guarantor can arret him and deliver him to judicial organ;(4) the duty of the guarantor isto sign the bail document approved by judicial organ, and poses bank deposit according to thedemand of judicial organ, and to pay out the bail amount described in the bail document6months later since he receives the notice from judicial organ, when the warrantee bail jumpsand the guarantor failed to arres the guarantee within time limit;(4) after the notice to forfeitbail amount being sent to the guarantor, the executive body should issue circular orders forthe arrest of the given warrantee, and the guarantor should be entitled to arrest the givenwarrantee by himselt or his agent, and the guarantor should be exempted his guarantee duty if the warrantee was arrested by him in time limit.Coclusion The CPPCJ in U.S. is a controversial matter as well as a thriving one. Itscreation and development reflects the failures of public criminal justice system. The fact thatit exerts a strong influence on the criminal justice system in U.S. should not be overlooked,and which also proves the possibility that the commercial and private idea may penetratesinto criminal field. The author believes that with the deepening development of marketeconomy, deepgoing of the reform of politics, as well as innovation and breakthrough ofjudicial concept, there will be a broader prospect and bright future for the CPPCJ in China.