A Study On Procuratorial Supervision System For The Change Of Imprisonment Execution

The Procuratorial Supervision System for the Change of ImprisonmentExecution in China has experienced the period of the foundation of People’sRepublic of China, the period of the revision of Law of Criminal Procedure in1996,and the period of human rights drawn into the content of the ConstitutionalLaw.The process of the improvement of the system equals an improvement ofhumanitarianism history. The basis and the background of the system is NationalPeople’s Congress and the theoretical base is the Procuratorial Supervision System,the theory of criminal penalty purpose, the theory of restrictions on jurisdiction, theprinciples of human rights protection, and the principles of just jurisdiction and thepolicy of Combining Punishment with Leniency. The factual basis of the system isthe overall deficiency of the design of the system, corruption issue and theexpectations for the incorruptness and justice in jurisdiction from the people.The system is the reflection of supervision authority of prosecution on thecriminal execution procedure. The subject of the system is the Procuratorate, whichholds the authority, and the organs which is responsible for that are the organs ofjudicial trial and imprisonment execution, excluding the criminal and the victim. Theobject of the system is the verdict of the change of imprisonment execution whichincludes substantive and procedural supervision. Procuratorial supervision in Chinais the reporting to the jurisdiction organs in nature, which is of judicial andadministrative management and of the mode of consultant and managementsupervision. The characteristic of which includes remedy, reconsideration,arbitrariness, procedure. The system in China is mainly a supervision afterwardswhich needs further improvement.The system in factual motion presents a unpractical tendency, the mainproblems are: the judicial interpretation and working regulation are exceeding statutory law, isolated from the supervised organs, regional regulations becoming thesource of the system, utilitarianism of the just value the system resulting from thecategory evaluation of the criminals’rights of appeal, property penalty and the civilproperty, absolute standard based on the criminals’ability of labor, exemption ofproving of the criminals’ scores for the data evaluation and records of change ofexecution and validity of the reason of the change lead to a formal supervision. Thechange of imprisonment execution which is characterized by trial in writing, beingcategorized by quantity, setting proportion, lack of publicity controls the effect ofsupervision authority. This phenomenon leads the judicial authority of supervision toadministrative management.The direct reason of the system is the lack of statutory law and theoretical basis.On statute law, the system of parole and commutation and serving outside prisonincludes the elements of evaluation of recommitting a crime, parole embodiespredictability of judicial judgment, commutation embodies confirmation of judicialjudgment. Owing to the uncertainty of the statutory law and the substantialcondition,the system is having trouble reaching the absolute objective criteria.Otherwise, utilitarianism of statutory reason of commutation, treatment differ fromthe objects of the change of execution, cutting the uniform value of the system ofsupervision, conditions of commutation are wider than those of parole resulting inthe reverse consequences of the reward and criminal penalty, divides the just valueof supervision and makes the system utilitarian. On procedural law, owing to thefacts that procuratorial organs cannot handle the facts and reasons of the change ofimprisonment execution, explicit suggestions cannot be given, supervisionafterwards only serve the function of correction. External supervision determinesthat procuratorial supervision is non-substantial, lack of intervention makes theauthority of supervision administrative, the uncertainty of suggestive supervisioneffect and burden of proof, exceedingly high standard of proof, determines the proofrule of procuratorial supervision disunity. The facts above forms the division of theexecution and the supervision and the overall design is intact and lack of efficiency.Through the comparison of domestic and abroad on the character, jurisprudence, value and procedure aspects, we observe that on the guarantee of system aspect, thesupervision in procedural effect should be protected in substantial functions,pre-supervision will enhance the effect, intervening supervision put the effect intoreality, social investigation on crime should be seen as an integral part, protections ofrights should be also put into procuratorial supervision, on the aspects of proceduralsetting. The verdict rule of proof will guarantee the objectiveness of supervision.How the procuratorial supervision function depends on the lawsuit of thechange of imprisonment execution, synchronous judicial system of procuratorialsupervision, reform of the present examination and approval procedure towards ajudicial examination procedure, the theory basis is that the benefit conflict in thechange of imprisonment execution is reflected in the conflict whether the changeshould be granted, the essence of the conflict is the process of coordination ofauthorities rather than a real confrontation, thus the new procedure should be alawsuit of resolution of argument. In the new procedure, a steady triangle structureshould be erected which concludes the court, criminal execution organs and theprocuratorate, this will enlarge the scope of participates and guarantee their rights ofattending on court and also guarantee the court the attainment of information duringthe trial. The authority of procuratorial supervision should be restricted as merely anprocedural effect and the proof standard should be probability, the procedure ofproving should differ in parole, commutation and serving outside the prison. Theauthority of procuratorial supervision should be exercised justly as to protect therights of the criminals and victims and suggestions of supervision should bepresented just and neutral. On the specific constructions aspects, working mode ofsynchronous monitoring should be improved in subject, content, process. The rightsof investigation, appealing, suing, gaining materials of the criminal execution organsshould be guaranteed. The authority of procuratorial supervision includesprocuratorial suggestions and correcting law-breaking suggestions, the latter iscompulsory, breaking the procedure of procuratorial supervision should adoptadministrative, law-breaking, criminal liability punishment and adopt the proceduralpunishment which is beneficial to the annulment procedure, in order to guarantee the effect of authorities and reform present system of the change of imprisonmentexecution, we should attribute the subjects to the court, and the appeal subjects to thesupervision organs and establish the system that the period of communation shouldbe put into the period of parole and make the two parts coordinated with each other.