A Study On The Commutation Of Sentence System In China

Commutation of sentence system plays an important role in enforcement of punishmentagainst freedom,it’s widely applicated,hundreds of thousands of prisoners are commuted ofsentence every year,it matters basic human rights of prisoners.Prisoners sentenced to controlpunishment、criminal detention、fixed-term imprisonment、life imprisonment and people whowas sentenced to the death penalty with a two-year reprieve changed to life imprisonment orfixed-term imprisonment,during the enforcement of punishment against freedom,if theyconscientiously abide by the rules of prison,accept education reform,show truerepentance,meritorious service or significant meritorious service,may have their sentencescommuted.Commutation of sentence system gives the hope of freedom to prisoners whoseliberty is deprived or restricted.By accepting education reform,hard work and other goodbehaviours,they get credits,credits are exchanged to rewards,finally exchanged tocommutation of sentence,by the daily and hourly exercising an invisible, formativeinfluence,prisoners recognize that obeying the law will bring benefits,purpose of punishmentis achieved.We should pay great attention to this system,make further study into thetheoretical bases of the commutation of sentence system,discover and solve complicatedproblem in practice.Individual prevention theory、general prevention theory and retribution theoryare the theoretical bases of the commutation of sentence system.By commute ofsentence,purpose of regulating isolation time,deterrencing limittly,correcting thought and actcomprehensively,preventing another crime will be achieve.By commute of sentence,freedompunishment shows its deterrence,warns the public not to commit a crime,guides the public tocomply with social norms positively.The authority of the state was established whenjudgment carried into effect,social ethics was recovered and the victim had been met whenprisoners were punished,retributive punishment will promote prisoners have sense ofsin,because the retribution is basically achieve,commuting of sentence can be implemented.Commuting of sentence should be restricted.Deterrence and correctional effort will notproduced without enough isolation time,individual prevention theory requires restrictedcommutation of sentence.If there is not enough punishment to prisoners,we shall be unable to guides the public to comply with social norms,worse still,we shall encourage crime,generalprevention theory requires restricted commutation of sentence.If commutation of sentence isabused,justice retribution can not inflicted to prisoners,authority of the state will bechallenged;“chang-shi”、“chang-li”、“chang-qing”and other social ethics will bedestroyed;the victim may do something mad in the spirit of revenge;sense of sin will bereplaced by holding law up to ridicule,retribution theory requires restricted commutation ofsentence.There exist many problems in the commutation of sentence system, It is improved intheory and practice.This paper is divided into six parts,it includes:Chapter1:Summary of commutation of sentence system.Commutation of sentencemeans,people sentenced to freedom punishment,during the enforcement of punishment,because of good behaviours which are stipulated by law,prisons submit a commuting ofsentence for approval,Intermediate People’s Court or Higher People’s Court ruled whethercommuting or not,it’s a system which penalty enforcement be changed.Commutation ofsentence system germinated in the Ching dynasty,conceived in war before1949,shaped before“wen-hua”revolution,stoped in1966-1976,reborned in1979Criminal Law,improved in Theamended Criminal Law in1997and the regulations of Amendment VIII to Criminal Law in2011,have significant changes in judicial interpretations issued by The Supreme People’sCourt in22-2-2012.Commutation of sentence system have five functions: encouragement;returning to society;utilitarian;conditioning.Chapter2:The theoretical bases of the commutation of sentence system.Individualprevention theory、general prevention theory and retribution theory are the theoretical bases ofthe commutation of sentence system.Cesare Lombroso、 Enrico Ferri、 Baron RaffaeleGarofalo、Franz von Liszt、Filippo Gramatica、Mark Ansel are principal exponents ofindividual prevention theory,their theories are valuable to the commutation of sentencesystem.When deterrence has been true,sentence to freedom punishment can becommutated.Encouraging prisoners by commuting sentence,can guide them observe evenlove the rules of behavior,but not to break the rules.Retribution theory provides theorysupport for the commutation of sentence system from four perspectives:the authority of thestate;retribution from society;the victim’s revenge;prisoner’s sin conception.Chapter3:The theoretical bases of the restricted commutation of sentence.Individual prevention theory、general prevention theory and retribution theory provides theory supportfor restricted commutation of sentence too.Commutation of sentence plays an regulating rolein separating prisoners from others,a period of time is the base of deterrence andrehabilitation.Abusing of commuttion of sentence will make the punishment too soft tofrighten prisoners.Not commuting of sentence to prisoners execute evil actions even not sogood behaviors,will deterrent whom want to crime.Encouraging the prisoners whom conformto the norms of behavior and make contributions to society by commuting of sentence,willcall on the public to abide by the law.The authority of the state has been highlighted,socialorder has been restored,the revenge emotion has been cooled,Producing the concept ofexpiating himself need a period of time.Chapter4:Character of power of commuting sentence.Who have the power ofcommuting sentence is debated widely.Judicial power or executive power? The power ofcommuting sentence can be shared, the power to make suggestions to commuting of sentenceand the power to make decision to commuting of sentence.The suggesting power is to suggestcommuting sentence and the length of freedom punishment.The deciding power is to decidewhere commuting,and the length of freedom punishment can be commuted.Chapter5:The present situation of commutation of sentence system.Commutationcondition can be divided into four parts:the object condition;essential condition;limitcondition;time condition.Evaluating Amendment VIII to Criminal Law by binaryhandlungsunwert is valuable.The Supreme People’s Court promulgated Provisions on SeveralIssues about how to applicate of law on Commutation of Sentence and Parole in2012,thispaper evaluates the changes of the content.The application of commutation of sentencesystem in China:widely applied;corruptions in a certain range;some prisoners commit a crimeagain when they be commuted of sentence;the proportion of real term of enforcement andsentence of short term prisoners is higher then long term prisoners.Chapter6:Defects of commutation of sentence system and how to perfect.The maindefects are:the power to make suggestions to commuting of sentence ceconflicts with thepower to make decision to commuting of sentence;“shows true repentance”content is not clear;meritorious performance and major meritorious service definition is not clear;limits theprobations to get commutations is inequality.strictly restricted commutation of sentence mayresults heavy task in prison,commuting of sentence not in equal usage,real term ofenforcement can not embody the difference among prisoners.Measures to improve are:internal coordinate of conflict of power of commuting sentence;makes “shows truerepentance”content clear;specifies boundary between meritorious performance and majormeritorious service;equal opportunity for the probations; formulating national criminal scoreassessment guidance;make real term of enforcement embody the difference amongprisoners;establishing of negligent crime prisoners commutation rules.