On Penal Execution Procedures

Of all the criminal procedures, the penalty execution procedure is the last but not theleast important procedure. On the contrary, it’s the key procedure to realize criminalresponsibility. Criminal liability comes into being due to criminal actions, and it is ascertainedafter a guilty verdict has come into force. As to a guilty verdict that has imposed a penalty, thepenalty execution procedure is the only way to realize criminal responsibility. Thus, thisprocedure is the key that bridges procedural law and substantive law, and the key to realizeprocedural justice and the aims of criminal sanctions.During the last two or three decades, especially in recent years, the lawmaking, theimplementation mechanism and scholarly research as to the penalty execution procedure haveachieved great achievements, but there are also some evident problems. As to legislation, theLaw of Criminal Procedure does not fully give expression to this procedure. The problemssuch as the lack of coherence among the legal rules, and their lack of operability have notbeen effectively resolved. In practice, the procedure of delivering judgments and criminals toexecutive organs, and the procedures to suspend and windup execution have not attracted fullattention, the various problems arising from the execution process and the sentencemodification procedures have not yet been fully resolved. There are many books and articleson the execution of penalties, but these works are focused mainly on the sentence commuteprocedure, the parole procedure and the outside-of-jail execution procedure, books or articlesthat systematically study the whole procedure are rare. Thus, it will be of great importance tostudy systematically of the whole penalty execution procedure form the delivering ofjudgments to the windup procedure, the problems in legislation and practice, and the ways toperfect the legislation and work mechanisms.This Ph.D. dissertation is composed of six chapters besides an introduction and anepilogue, with about140000words. Chapter I deal with some theoretical issues. The rest partof this dissertation deals with the particular procedures of penalty execution procedure,namely, the delivering of judgment and criminals, the execution process, the sentencemodification and parole process, the outside-of-jail execution process, and the procedures tosuspend and windup execution.Chapter I deal with theoretical issues such as the values of, the power allocation among different organs, and the human rights protection during the penalty execution procedure. Thevalues of the procedure may be divided into instrumental value and intrinsic value, the formeris to realize the aims of penalties, while the latter includes regulating the functioning ofpowers, safeguarding human rights and realizing final justice. The powers involved in thisprocedure are the execution power, the supervisory power and the adjudicative power. InChina, the execution powers are allocated to various organs, such as the jail, the publicsecurity organs, and the people’s courts. Scholars usually maintain the position that we shouldhave a unified organ to execute penalties. As the current state of affairs does not permit us toadopt this option, we should gradually optimize the allocation of powers and make steadyprogress while aimed at realizing the aims of penalties, and adhere to the principle of divisionof labor with individual responsibility, working in coordination and mutual conditioning. Inthe process of the execution of penalties, we will encounter the modification of the period ofsentence, the way and place of execution. The sentence commute and parole procedure whichmodifying the period of sentence or the way of execution need the involvement ofadjudicative power. It is proper to allocate this power to the people’s courts, and improper tolet the penalty execution organs to make decisions. During the execution process, theexecution organs control the person that is being executed penalty. The close up character ofthe penalty execution process makes it easy for the penalty execution organs to expand theirpower, and the rights of the person being executed penalty will easily be infringed. Thepeople’s procuratorates which have supervisory power are the only outside state power thatcan involve this procedure. The enhancement of the supervisory power of the people’sprocuratorates will be of great value to the realization of the values of the penalty executionprocedure. Besides, we shall safeguard the civil rights and other rights of the person that isbeing executed penalties.Chapter II studies the document and criminal delivering process. This process regulatehow should the organs deliver and receive document and criminals, and how should thepeople’s procuratorates supervise this process. Although the laws and judicial interpretation oflegal rules have some rules as to this process, there exist the problems such as the conflict ofrules on the organs that have the duties to deliver and receive documents and criminals,sometimes we are not clear which shall be the proper organ, while in other circumstances wesimply even don’t know which is the proper organ, the proper subject to be delivered. Thecontent of the document that shall be delivered is not clearly defined yet. In practice, sometimes the people’s courts do not deliver, or delay delivery, or make incorrect delivery.The house of formal detention holds back criminals. The prisons expand the conditions ofrefusing accepting criminals, or receiving criminals illegally. Temporary outside-of-jailpenalty execution is not or can not be delivered. The link up among the state organs is notsmooth. It is difficult for the people’s procuratorates to supervise this process. We shall clearlydefine the duties of the state organs, imposing the duty of delivering documents and criminalson the people’s courts, and the duty of detaining criminal suspects but not deliveringdocuments and criminals on the formal detention house, the accepting and penalty executionduty on the administration of justice, which including the execution of the death penalty andimprisonment, and also accepting the criminals that have been decided to be executedtemporarily outside of prison. The people’s procuratorates shall be defined as the director andsupervisor of the process. We shall also clearly define the period, methods of delivering anddissent. Besides, the system of accountability, delivering security system, the right toparticipate in the process of the victim, the right of the criminals and their relatives to receiveremedies, and the system of temporary postpone delivering. The work mechanism shall alsobe improved. We shall construct a platform for sharing commanding and decision-makinginformation, and build up an information bank during the construction of the casemanagement platform. The coordination between the various organs shall be enhancedthrough the spreading of Temporary Outside-of-jail Execution Flow Card and Double Signingworking mechanism.Chapter III studies the penalty execution process. In China, the penalty execution poweris allocated to various organs. Thus this process has the characteristic of deconcentration. Therules of this process have two characters. On the one hand, there are many rules, many ofwhich are overlapping. On the other hand, there is lack of rules, and the authority and link-upof which are very rare. The death penalty execution process shall be improved throughallocating the execution power to the administration of justice, and improving the ways ofexecution, enhance the supervisory function of the people’s procuratorates and theparticipation of attorneys. The imprisonment execution process shall be improved throughamendment of the Prison Act so as to enhance its operability and to erase the deconcentrationof penalty execution, and through the improvement of the conditions of criminals that arebeing executed. The property-oriented penalties execution process shall be improved bymaking clear which shall be the execution organ, regulating the execution process in detail, establishing conservatory measures and prejudgment execution system. The communitycorrection process shall be improved through a multi-level treatment system of communitycorrection by way of constructing a platform of information of criminals serving sentence,and encouraging social involvement, safeguarding its capital source.Chapter IV focuses on the sentence reducing and parole process. This process is collegialand not confrontation. The substantive norms of this process are ambiguous, the justiceequilibrium function of which is not adequate, and the rules of this process are conflicting andthe adjudicative rules are not unified. In practice, sentence reducing is used more frequentlythan parole, the reason is that the former does not require reallocation imprison place and thusmore convenient. Other defects of this process include the litigation structure is not scientific,the assessment mechanism is outdated, and the supervisory power of the people’sprocuratorates is weakened. Thus the legislation of this process shall be improved byamending the substantive conditions, lay down in detail the procedural rules, and introducinga repeal procedure of sentence reducing decisions. The working mechanism shall be improvedthrough the improvement of the submission, adjudication, probation and supervision methods.Chapter V studies the temporary outside-of-prison execution process. This process isconnected to community correction, and is another form of sentence amendment which ismore connected to the treatment of criminals. The substantive conditions of this processpromulgated by law are not scientific, the identification mechanism is not adequate, whichshall be the supervisor and what are its responsibilities are not clear, the procedural rules arecrude and not adequate for the protection of the rights, and lack of accountability. In practice,the application of this process is relatively more conservative. There is serious lacunae tube,maliciously circumvent the normal procedure of taking into prison, and poor oversight. Onthe whole, the process shall be replaced by a execution breaking system, which is kept withinthe framework of the administrative of justice procedures, and in which a hearing shall beintroduced. In specific, the substantive conditions of this process shall be improved, and theconditions and responsibilities of the person standing guarantee for criminals shall beperfected, the identification procedure shall be refined, and we need an optimal decisionprocedure, a clear procedure for supervision of community corrections program, solid, andperfecting the criminal’s rights. In practice, we may introduce a hearing and display system,enhance the link-up among the organs and the supervisory function.Chapter VI studies the suspension of penal execution and termination procedures. At present, the suspension and termination procedures are imperfect. In the legislative level, thecurrent law clearly defines the suspension of the death penalty and its supervision procedure,but there is no suspension procedure, and researches on this subject are rare. There are norules in the Prison Law on release about amnesty and ruled-release, and no specificprocedures on the termination of penal execution. In the practical level, because there are nosuspension procedures as to the deprivation of freedom penalty and property penalty, thisresults in a series of negative consequences. All these factors further deepen the infringementof the rights of the criminals when it is impossible to deliver criminals to prison or not todeliver criminals. To realize the goals of penalty, I propose that the suspension of penaltyexecution procedure shall be introduced into our legal system, and set up an executionlimitation system, perfect the system of forgiveness, build a prison before go out of prison,clearly define the date of release, and establish a system of shelter for those released.