Research On Procedure Control Of Execution Change Of ASentence Of Imprisonment

This article focuses on analyzing the procedural monitoring mechanism for imprisonment execution changes and giving suggestions for improvement to prevent illegal execution problems from happening again. With the help of comparative, empirical, and analytical study approaches, the part of introduction discusses the theoretical significance and practical value of procedural monitoring mechanism for imprisonment execution changes based on the priority of procedure over substance, studies the main research results in this field, and collects first-hand information after a small-scale investigation in some prisons in Shandong Province.Chapter One introduces the concept,the types and values of the procedural monitoring mechanism for imprisonment execution changes, which is defined as a unified system in which imprisonment execution changes are legally systemized to control the initialing, proposing, and deciding stages, specifically falling into three categories of commutation procedure control, parole procedure control and temporary probation (suspended imprisonment executive) control procedure.Chapter Two describes the theoretical basis for procedural monitoring mechanism for imprisonment execution changes:power balance theory, procedural justice theory, restorative justice theory, and procedure democracy theory, whose essence lies in power balance, which involves the right of execution, adjudication, and supervision by the State, where the procuratorial supervision counterbalances the execution right, the procuratorial supervision counterbalances the adjudication, the execution right and adjudication counterbalance the procuratorial supervision, and execution right counterbalances the adjudication. Procedural justice is recognized as visible justice requiring that no one can be judged by himself, and that opinions of the parties have to be listened to, which can be vividly summarize in the legal motto of "Justice must not only be done, but must be seen to be done." At present, we have such problems as insufficient involvement, unequal rights, being not prompt, and being short of remedy procedure, which need to be reformed a lot. Restorative justice theory focuses on balancing the interests, damage of different parties by taking into account the interests of all parties. At present, the victims are not ensured the procedural right since they are not the parties in the process where the offenders and the victims lack of a platform to communication, apologize and compensate. Restorative justice theory requires that the victims have more rights to participate in the decision on the offenders’execution change (commutation, parole), in order to help the victims get sufficient compensation. The essence of procedure democracy theory is public participation and open litigation, requiring that execution change procedure has to be supervised by public in addition to prosecutorial supervision.Chapter Three discusses the procedural monitoring mechanism for imprisonment execution changes in major foreign countries and summarizes such typical models as:initialing procedure control (by execution agencies, the criminals, or selection between deciding agencies and execution agencies), the proposing procedure control (by execution agencies, public prosecution agencies, committees or composite bodies), deciding procedure control(singular model and composite model), and supervision control(combination of execution and prosecution and separation of execution from prosecution).Chapter Four empirically analyzes the current procedural monitoring mechanism for imprisonment execution changes in China and its problems covering the initialing, proposing, deciding and supervising stages. In China, commutation, and parole processes are initialize by the judicial agencies, while temporary probation is initialize by administrative agencies, thus causing such problems as that the sentence implementation is monopolized by execution agencies causing corruptions without insufficient supervision which influences the fairness of execution change procedure, and the victims and the prisoners are not entitled the rights to participate in the process.. Secondly, it is the execution agencies that proposes the execution change to the judicial agencies, in which fairness cannot be ensured because of the weak democracy, imbalance exists between different areas in proposing case numbers, improper accountability mechanisms leads to the low proposing proportion on community execution of parole, and temporary probation, and parole and commutation are not treated in proper proportion.Thirdly, with regard to the deciding process, commutation and parole are decided by judicial agencies while temporary probation by administrative agencies, thus causing the following problems:parole by judicial agencies reduces the efficiency of the parole decision, the proceeding structure of commutation and parole is not scientifically designed, the operating procedures cannot be regulated strictly leading to power abuse, and again the victims and prisoners are excluded from the process. Problems with regard to temporary probation are as follows:fraud does exist in acquiring medical proof for temporary probation, the fact that probation sentence term is included in the execution term may lead to fraud among criminals and their relatives in the pre-approval process, and re-imprisonment is not strictly regulated after temporary probation causes disappear. Finally, in terms of the supervision procedure, execution and supervision are separated leading to insufficient supervision decreasing the power of prosecutorial supervision procedures.Chapter Five reconstructs the initialing process Of procedural monitoring mechanism for imprisonment execution changes. Firstly, prisoners and the execution agencies both have rights to initialize the process with the priority given to the prisoners over execution agencies, while temporary probation needs to be changed to suspended execution of sentence of imprisonment and should be initialize by prisoners. Secondly, parole should be applied to the centralized batch program while suspension of execution of imprisonment should be dealt with case by case. Thirdly, the verifying stage is necessary after the initialization, specifically including application by the prisoners, publicity after the application, objection, objection handling, and submitting procedure from prison sections to penalty board.Chapter Six discusses the reform on proposing procedure starting from summiting the documents to prison penalty board and ending with the decision made by prison, with the new idea on the separating point between initialing and proposing, including review and publicity by the prison execution sections, proposition by prisons, publicity, participation by victims and community correction agencies, proposition to judicial, parole committee and admirations. We advise that commutation should be brought to the court by the prisons, parole should be proposed to provincial prison administrations by prisons and reported to provincial parole committee, and suspended execution of imprisonment should be proposed by to provincial administrations by prisons.Chapter Seven focuses on the reform on the deciding process. Firstly, commutation has to be decided by judicial agencies. Secondly, parole should be decided by reviewing board since it does not change the original sentences or rulings just changing the ways and the places offenders serving sentences, i.e. from prisons to the communities. Three levels of parole committee should be set up at the prison level, provincial level and the state level. Thirdly, suspended execution of imprisonment has to be decided by administrative agencies since it is designed for humanism reasons as temporary measures for efficiency. Fourthly, publicity and filing review procedures have to be established after the decision of the execution change of sentence of imprisonment is made. Fifthly, it is necessary to establish test and revocation procedures after execution changes are made with setting up revocation system and testing period. Sixthly, remedy procedure is also necessary to allow for appealing by prisoners and prosecutions. For parole procedure, if offenders or the victims refuse to accept the results of the reviews by provincial parole board, they can appeal to the provincial parole board by the applicant. If the provincial parole board believes after examination that the complaints of offenders or the victims justify, a hearing process will be set up to listen to criminals, victims, and enforcement agencies and voting will be necessary to decide whether to maintain the previous assessment results, or to make a change, and then the ruling after hearing procedure is final. For suspended execution of imprisonment, when provincial decisions are made and the prisoners refuse to accept, the prisoners have rights to apply for administrative reconsideration or administrative litigation, while provincial procurators also can suggest rectifications on the decisions by provincial prisons, and provincial prisons have to do so. Chapter Eight aims to perfect the supervision process of the imprisonment execution change. Procuratorial agencies should supervise the initializing process including scoring, publicity and disapproval reviewing, the proposing process including publicity, hearing and reviewing, and the deciding process including participating in court trails, casual inspections or appealing, as well as supervising the decision process of provincial parole board and suspension decisions by provincial prison administrations.