Law Economical Analysis On The Basic Problems Of Community Correction

Since the20thcentury, the community correction that combine the penaltyapplication of traditional probation, parole, prisoner protection, and intermediatesanction with community sanction and crime preventing measures has instead offreedom penalty and becomes the most widely used criminal penalty and correctionmeasure. but the community correction development in our country is not as weexpected. It was taken seriously since the enforcement of community correction in2003.At present the community correction legislation has been put on the agenda, butwe still have unclear knowledge about some basic theories such as the nature,function theory, operation mode of community correction due to dearth of theoryresearch and mono research method. After the middle of20thcentury, with the fastdevelopment of Law Economics,it is helpful to improve the community correctionlegislation and promote the legislation quality by using economic methods andanalysis tools to study the community correction problems, such as foundation,development, nature and duty border, and provide the reasonable items for theestablishment of Chinese characteristic socialistic community correction.When we regard the community correction as the public goods that meet therequirements of social security, the state organs, state staff and power that are usedto carry out the community correction are the important capital which can providethis public good to the society. These distribution mode of resource are made by therelated law systems. Different system arrangement means they will bear differentsocial cost. The problem of social cost is an important factor to improve the systemreformation.Social cost theory starts with the concern about the negative externality.Transaction cost theory provides the more advanced and multiple ways to solve thesocial cost that has the negative externality as its main content. In some aspect the existence of negative externality is effective because of the existence of transactioncost. Institution cost includes transaction cost and negative externality cost. From thepoint of effect of system to the resource distribution and the system operation cost,system cost is equal to the concept of social cost.The economic analysis of system should examine the social cost of currentsystem operation, while the saving of new system prediction to the current systeminvested cost,to the avoiding negative externality of current system and the directprofit that the rearrangement to the resource can be higher to the current systemoperation are the social cost of the current system operation. The new systemoperation cost is composed of the invested productive cost, negative externality ofnew system and the profit of the lost old system operation. If the social cost of newsystem operation and system-alterative cost are less than the social cost of currentsystem operation, the improvement of the system will take place.The birth and development rules of community correction are the basic factorsto study the nature and characters of the community correction. The understanding ofthe problem is related to the definition of community correction legislation to itsnature and scope. Deterrent theory provides a new angle of view to the research. Byreviewing the development process of Deterrent theory we find that the developmentof community correction is just the application and explanation to the Deterrenttheory from equal deterrence to marginal deterrence and optimizing deterrence.Under the influence of Deterrent theory, at present the community correction is notthe change to the enforcement of traditional freedom penalty, but the partial negationand innovation on the basis of examining social cost. The new public goods musthave the signs of penalty with the natures of non-penalty, non-punishment and socialaid, so the nature of community correction must be pluralistic.From the point of economics view, community correction and imprisonmentcorrection are the public goods that can meet the requirements of social securityeffect. Community correction has the Deterrent force of preventing crime and is a partof Deterrent system.Community correction applying to the crimes that are not sodangerous to the society and the criminals who have no personal danger can expandeffectively the marginal deterrence penalty. However, the Deterrent force of community correction is different to the persons who have highly dangerous crime.As for the group that is not bounded by social morality and tend to illegal behaviormode, Deterrent force of community correction is not enough to offset the crimeencouragement from the crime profits; but for the group that morality capital canbecome its whole human capital, the strong force doesn’t meet the object of socialutility maximization.The usage of state judicial administrative resource is arranged by the series ofrelated law regulations, the new increase of some resources in certain field orredistribution will change the operation environment of original resource distribution,and turn the original effective resource distribution mode to the ineffective one.Constructing community correction in the current judicial administrative system willnot only consider the partial balance of community correct ion field, which isnecessary to improve without the entire balance of judicial administrative system. Weshould regard the entire effect maximization as the object in the economic analysis ofsome system. Whether it is necessary to alter the whole judicial administrativeresource distribution is what we must consider on optimal position.From the whole judicial administrative system point of view, the judicialadministrative border and the duty of judicial administrative organs are commute, andthe duty border of judicial administrative organ border should go on expanding. In thepremise of the judicial police system,such as the house of detention, executive boardof court supervised by the judicial administrative organs, the community correctionorgans of counties should be promoted to a comprehensive law enforcement agency,and practice direct management to the under municipal level. Community correctionorgans should be in charge in Compulsory isolation detoxification, communitydetoxification and recovery, non-custody suspect supervision, the resettlement andeducation,etc, and send judicial police managed by the judicial administrative organs.to help carry out the above duties.