Value And Realization Of Restorative Criminal Liability

The criminal law worldwide has witnessed a development trend towards penalty mitigation which would have a great impact on the Chinese criminal law. The concept of restorative justice has been developed and practiced constantly in our country. When the scope of criminal liability which serves as the connecting bridge between crime and penalty appears to be alienated,phenomena of restorative criminal liability emerge at times. With this background, how the theory of criminal liability responds to such alienation? The author thinks that it is essential to construct restorative criminal liability in order to enrich and develop the theory of criminal liability and realize the balance between protection of victim’s interest and defendant’s return to society. In the end it solves criminal cases effectively,restores the relationship of society and safeguards the harmony of society.The author chooses the issue of restorative criminal liability which has both high level of theoretical value and practical significance as the topic of doctor’s thesis from own experience of judicial practices. The restorative criminal liability is a breakthrough and overthrow over the traditional criminal liability which makes this issue involves different aspects,rich content and challenging request. This thesis adopts the research method that insists on criminal integration and puts emphasis both on brave proposal and intensive demonstration. It will argue for the theoretical legitimacy and practical feasibility by means of case analysis,comparative analysis, historical analysis,literature analysis etc thus makes it possible for China to realize the legislation and judicialization of restorative criminal liability.The thesis consists of the introduction,the conclusion and the main body divided into five chapters.Chapter one analyzes the original background of restorative criminal liability, defines its conception,objective and characteristics and numerates its types and function in order to position and illustrate the newly-constructed criminal liability in theoretical view.The first section starts with general theories of criminal liability and reviews the historical revolution of criminal liability under different objectives. Retributivism is considered as a product of human being’s instinct of revenge. It is originated from natural social conception towards justice which regards penalty as punishment of criminal acts. Retributivism has gone through three stages that are retribution of the God, retribution of morality and retribution of law. Retributivism lingers because of human’s instinct. Precautionalism is also called as relative theory or utilitarianism which imposes penalty on criminals in an aim to prevent crimes in the future. The objective of it is to pursue real effect. Precautionalism can be divided into general prevention and special prevention regarding different objectives of crime prevention. Precautionalism fades because it is hard to confirm the limit of penalty and difficult to forecast the possibility of recommitment.Synthetism combines the justice of liability of retribution and utility of liability of prevention. It evokes and cultivates people’s emotion and awareness of law and safeguards the order of law by applying penalty. It can be divided into the real synthetism,absolute synthetism and relative synthetism by different emphasis. Because synthetism cares about personal rights and social interest on the basis of realizing justice,it balances the justice and efficiency of penalty in a better way. Comparing with retributivism and precautionalism, synthetism is relatively reasonable and corresponding to basic value judgment of the majority which makes it popular nowadays. But with a new time background and support of theory that restorative justice emerges,the dominate position of victims returns and public law and private law fuse,the criminal liability witnesses new trend that the objective of criminal liability is no longer determined by the objective of penalty and the objective of criminal liability develops from retribution and prevention to restoration. Restorative criminal liability is ready to come out.The second section defines the concept of restorative criminal liability by analyzing judicial cases.The restorative criminal liability is composite and of new type. It requires the criminal/defendant to assume the consequence and responsibility of restoring the loss of the victim and the damage of the social relationship based on demand of restorative judicial concept. If the defendant pleads guilty voluntarily or repents actively after committing a crime and before judgment; makes apology and compensation to the victim; implements restorative acts actively or it has restorative elements itself; or the victim forgives or reaches settlement agreement with the defendant,the defendant can get a lesser,reduced,exempted punishment or even be exempted from being accused or having the case being withdrawn. The restorative criminal liability is a multifaceted one that pursuing restorative justice. Different from retaliatory and preventive justice that is country-centered, the restorative justice focuses on the individual and the community. It emphasizes on restoring mental damage of the victim resulted from crime and repairing the conflicting relationship among the defendant,victim and the community resulted from crime by compensating the physical and mental loss of the victim. It reflects humanitarian spirit that is human-oriented in nature. The essential characteristics that distinguish it from the former three criminal liabilities are:the restoration and balance from view of objective of liability; the integrality and harmony from view of form of liability; the responsiveness and procedure from view of realization of liability. The restorative justice is a justice that is balanced, forgiving, respecting and for the victim.The third section points out that reflection of assuming restorative liability is an organic unit of assuming criminal, civil and administrative liability. It includes compensation for criminal damage,apology,repentance,community service, charitable donation,administrative penalty/sanction and gentle penalty. It is more diversified comparing with former criminal liability. The restorative criminal liability has five composite functions. The first one is to resolve dispute in an alternative and repaid way thus enforces the supervision on public authorities in accordance with the principle of rule of law. The second one is to promote balance and harmony between the defendant and the victim and the community thus reduces negative factors endangering social stability and prevents crimes effectively. The third one is to repair mental damage and physical loss of the victim thus protects specific victim and maximizes public interest. The fourth one is that the defendant still has the opportunity to apology,compensate,provide community service and life aid after committing the crime which makes it easier for him to reintegrate into the society in the future and beneficial to the transition of the defendant. The fifth one is to maintain the dignity,concern and respect of each party in the community relationship, relieves panic,participates in social investigation before judgment and arranges community services which is beneficial to the safety and peace of the community.Chapter two discusses the theoretical foundation of restorative criminal liability from three aspects: legal principle, social support and cultural identity.The first section fully discusses about major value orientations such as order, justice, freedom and efficiency in order to reveal how restorative criminal liability highly fits basic legal values. Firstly, it is the internal motivation for preserving order. Criminal law has the mission to fight crimes and defend the society which makes it being connected to social order more directly and closely. Besides, it is an active constructing procedure when the restorative criminal liability preserves social order because it promotes the improvement and upgrade of social relationship by taking crimes commitment as a chance. Secondly,it is the inevitable demand for pursuing justice. The retaliatory justice of penalty excludes any position of the victim in the criminal liability therefore it is incomplete. The restorative justice, on the other hand, focuses on multidimensional interest and relation that is victim-defendant-centered. It does not violate the principle of suiting punishment to crime. On the contrary,it is the request and reflection of this principle. Different treatment in the restorative criminal liability is a reflection of substantive equality and does not violate the principle that everyone is equal before law. Thirdly,it is the rational choice for promoting freedom. It has two aspects. The first one is the traditional negative freedom which concerns the relation between restorative liability and the principle of legality. The principle of legality is put forward to restrict country’s excessive implement of penalty, opposes uncertain and arbitrary crimes and penalties thus safeguard basic human rights. The principle of legality regulated in article 3 of our country’s Criminal Law shall not be interpreted as an active one to include more crimes but a powerful comment for the restorative criminal liability. The second one is the active freedom of the parties. The restorative criminal liability both insists on the will of the state to deal with crimes and the involvement of the parties and social force which realize the organic unit of consensus and constraint to resolve disputes. At last, it is the source for improving efficiency. In the procedure of investigating and punishing criminals by the state through criminal judicial means,it is necessary to rely on material forces which makes it inevitable to be efficiency-oriented. Restorative criminal liability can save judicial resources effectively, reduce the social cost of resolving individual cases thus meet the requirement of the principle of litigation economy and efficiency of lawsuit. It can be better explained by the economic person assumption of economics.The second section discusses about the solid social and political foundation of restorative criminal liability. Firstly, it is the guarantee for the transition and modernization of country’s governance system. Human’s political development has witnessed a general trend from rule to govern. The transition of policy against crimes from severe measures to combining severe and tolerant measures is a reflection of the profound change of governance from the dictatorship of the state to social participation in China. The restorative criminal liability implements the policy combining severe and tolerant measures against crimes and guarantees the transition of state governance. Secondly,it is a manifestation of humanistic concern. The criminal law is bonded to the respect and guarantee of humanity and human rights from the day it was produced. This connection is rather restricted under the dual structure of criminal law and the litigation mode of intense competition. Restorative criminal liability implements the notion to the most extend that one’s business shall be decided by himself and cares more about the restoration of victim’ mentality. It encourages the criminal to discover conscience and repent and to be good. Thirdly, it is a carrier of modesty and tolerance. The nature of the modest and restrained character of criminal law is to comply with development of the time and restrict the expanded applying of criminal law within a reasonable scope by relevant principles, institutions and mechanisms. Modesty comes along with tolerance. Restorative criminal liability embodies modesty and tolerance exactly and realizes the restoration and balance of all parties’ interest. At present,we shall pay more attention to the applying of restorative liability in judicial practice. At last,it is a way to achieve social harmony. The power of penalty is the power of state to punish criminals according to law based on the administration or ruling of the society. The factor of negotiation and cooperation included in the restorative criminal liability renders the subjects who can deal with crimes diversified and promotes social participation. In the end it contributes to the resolve of social conflict and the harmony of social relationship, beneficial to the settlement of the case and the issue,and enhances social identity.The third section discusses how restorative criminal liability corresponds to the cultural background of our society. Any institution is born under certain cultural background. Firstly,it strengthens the ethic basis. As social norms law is rooted in the morality and ethics of certain period and this is without exception in and out of China. For thousands of years of our feudal society,morality is given priority over penalty in the legal system. The conception that what exceeds the scope of morality falls into the range of penalty makes crime and evil those two social evaluations different in nature equal and fused. Restorative criminal liability inherits and carries forward useful part of the traditional ethical law in ancient China,emphasizes on lecturing and prevention and meets the reasonable requirement of the parties. Secondly,it is in accordance with the harmonious culture. The harmony between human and the nature and inside human beings itself is regarded as the essence and characteristic of Chinese culture by scholars of China and western countries.Disputes and lawsuits are what shall be avoided. In the criminal judicial field which involves the most conflict,the restorative criminal liability restores the damaged social relation by harmony and reflects how excellent cultural heritage is absorbed and utilized by modern legal system. At last,it conforms to the ideology of juste-milieu. Juste-milieu is the common mental tendency and thought patterns shared by the Chinese nation and is regarded as the essence of thought method of Chinese legal system. The ideology of juste-milieu that units affection,reason and law provides basic methodology for restorative criminal liability. Restorative criminal liability is the new result of compromise and balance during the development of criminal liability in our time.Chapter three discusses the practical value of restorative criminal liability by reviewing situation and cases out of and in China.It is inevitable to make a research on the situation abroad when discussing the establishment of certain institution or theory. It is generally thought that the restorative criminal liability originated from 1970 s and the restorative justice is popular in western society in 1990 s. The generation of the idea of restorative criminal liability and the maturity of theory is recognized by the international criminal law scholars’ circle and it is not a long round from its generation to maturity. Many problems were resolved in application by the recognition of the UN especially the promotion of the ECOSOC. Meeting of family group – one of the most important modes of modern restorative justice – initiated in New Zealand. The restorative criminal liability is mature,stable and officially legal in New Zealand whose dilemma is to promote the satisfaction of the victim. The restorative criminal liability in England originated from juvenile correction system. Criminal acts not only infringe the social relation protected by criminal law but also threaten the safety of the victim. In America’s practice, the mode of self-cooperation is general and the social cooperation is developed. In Canada,it can be implemented in any stage of a criminal case. Besides countries of common law system,practice of restorative criminal liability flourishes in civil law countries as well. Germany is the country with the most mediation projects in Europe which are designed mostly from juveniles and one that has the most comprehensive regulations of restorative justice currently. But it is still conservative in view of internalization and weights the mitigation of burden of state to prosecute more than the interests that shall be gained by the victim in its law modification. Political circles, scholars’ circles, judicial practices circles and religion circles all pay close attention to the restorative criminal liability in Japan. It emphasizes on the power to punish the criminal from minor offenses and the compensation and protection of the victim. In Hong Kong and Taiwan in China, the restorative criminal liability is in the ascendant.The progress of Chinese rule of law shall be an institutional change respecting local knowledge and it shall rely on local resources to resolve practical issues. Therefore, apart from reviewing international conference resolutions, national practices of main common law system and civil law system countries,the second section reflects the criminal rule of law under traditional concept of criminal liability and lists legal regulations and institutions with influence of restorative criminal liability. It especially makes local exploration of restorative criminal liability by analyzing judicial practices in Zhejiang,a district that boosts developed economy. When introspecting traditional criminal liability,we can find that the power of penalty is monopolized by the state,victims are seriously overlooked,defendants are rejected by the society and social relation is restored very slowly. It can no longer accord with and meet the need of the social development of rule of law. The influence of restorative criminal liability can be seen in the criminal law and criminal procedural law in our country as reflected in both general stipulations and specific regulations of law, both criminal policies and judicial institution. From judicial practices of restorative criminal liability in Zhejiang and other districts,it can be seen that the criminal justice in our country is changing from punishing criminals in tradition to restoring social relation that has been damaged. By comparing western experience and national status and analyzing national regulations and local explorations, the author thinks that regulations and practices of restorative criminal liability in our country appears to be localized, unsystematic, not in-depth and unbalanced, which remains to be promoted by judicial practice and legislation.Chapter four discusses the judicial realization of restorative criminal liability from three levels:macroscopic mesoscopic and microcosmic.First of all,we need to change ideas in macroscopic level. Firstly,stronger dialogues and communications. As far as the current situation of criminal justice is concerned,it emphasizes on the punishment against the defendant instead of a necessary platform from the criminal and the victim to communicate and exchange. As judicial authority with career advantages,it serves as a third party who shall provide opportunities for two parties to communicate face to face and thus restores the social relation damaged by criminal acts in its best. Stronger communication is not only the required by the time of restorative criminal liability,but also the inherent meaning of criminal justice. It makes the public easier to accept judgment of judicial authority. Secondly, better dispute resolution. As the controller of the society,the judicial authority shall be aware of the importance of resolving disputes. It needs to do the mediation and persuading patiently and carefully in order to settle the case and dispute besides decide the crime and sentence to make people open their hearts besides solve legal problems. Thus it reaches the goal of criminal justice that is to resolve the case and end the dispute. Thirdly,more arguments and reasons in the judgment. As the progress of rule of law continues to be promoted,the public is looking forward to find more justification in justice besides dealing according to law. We need to tell the public where are restorative acts and how they affect the punishment. It also recalls a more standard judgment publication system.Secondly,we need to build mechanisms in mesoscopic level. The first one is to explore the mechanism of paying equal attention to criminal and civil liability. In dealing with the criminal case,the verdict and sentence of the defendant shall be decided along with his civil liability of compensating the victim. In order to realize restorative criminal liability,we need to admit the shortcoming of prevailing criminal liability over civil liability, weigh punishment and compensation equally and explore the mode of litigation that attach equal importance to criminal and civil liability. Only by this way can we resolve the case and end the dispute and manifest the justice of criminal law. The second one is to improve the mechanism of case performance assessment of the judge. It endangers the criminal justice and is against the realization of restorative criminal liability when judicial authority normally regards the rate of dropping the case,not approving the arrest,not prosecuting,prosecuting and not guilty judgment as specific assessment factors of the professional work. It is essential to follow the rule of justice,assess the overall quality in accordance with professional characteristics and promote the initiative and enthusiasm of judge to adopt restorative criminal liability. The third one is to emphasize the mechanism of criminal justice suggestion. The restorative criminal liability is not only the mode of dealing with crimes but also a mode of social governance. We need to dig into the root of crime and research and analyze on how the criminal interacts with the social environment. Since the laws and regulations concerning criminal justice suggestion are incomplete and there are practical problems,it is essential to recognize its value of ruling, specify its basic content and exert its safeguard function.Thirdly,we need to execute specific mechanism in microcosmic level. The first one is to refine the standard of probation adoption. In our country,the mechanism of probation is the core of implementing the criminal policy of combining punishment with leniency and the concentrated reflection of restorative criminal liability. It conforms to the principle of humanity in penalty,liability restoration and economy in punishment. In judicial practices,there remain problems in mechanism of probation such as the low rate of adoption, visible difference among districts,relatively low rate of adoption when the defendant is a minor or nonlocal. Reasons lie in the deficiency of precise and scientific standard in discretion,restriction of the so called internal custom,normalization of pre-trial detention. Therefore we need to refine the standard of probation adoption including define reasonably what is a light circumstance of crime; decide accurately if it is a manifestation of showing repentance; seize roundly who is defendant that has no danger of recommitting the crime; handle leniently the standard of adopting probation for special groups; increase the adoption of probation concerning multiple crimes; use with caution coercive detention measures prior to trial. The second one is to promote social investigation before judgment. The social investigation before judgment is a written investigation report submitted to the court by community correction authority. It is the important support for adopting non-imprisonment penalty especially probation and becomes the entry for community correction. Due to reasons such as request on trial time limit and separation of registered and actual residences,it has to be admitted that the social investigation works not so smoothly and there is gap between the conclusion of the investigation and the original intention to entrust the investigation. In order to implement this mechanism effectively,it is suggested that the entrusted investigation process be moved forward, entrusted investigation work during the trial be perfected and special measures be applied to minor defendants. The third one is to optimize the mechanism of community correction. It is an executing method as well as a safeguard mechanism of non-imprisonment. This method of penalty execution has been long adopted in many countries around the world while in our country it is just in the beginning stage. Besides promoting legislation, we need to carry out the measures for the implementation of community correction, strengthen the connection, cooperation and supervision between judicial administrative authority and the court, the prison, the public security and the prosecution authority, improve the quality of staff, enrich the method of correction and carry out correction with pertinence. The fourth one is to improve the procedure of commutation and parole. Currently the procedure of deciding commutation and parole does not involve the virtual participation of interested parties such as the prosecuting authority and the victim thus makes it formalistic. The victim who has an interest in the result of judgment shall have the right to participate in the procedure of trial and the criminal shall dismiss or soften the confliction between two parties by compensating the victim actively. It helps to restore the damaged social relation and realize social justice in the end.Chapter five explores the legislative perfection of substantive law and procedure law.The first section is the improvement of substantive law. Firstly,enrich the content of the penal system 。 public surveillance and probation executed and supervised by the nearest justice; implementing social correction and if the contact with the community is not close,it should be set up a community service order forcing community service or prohibiting criminals engage in some particular activities; to prevent the use of various occupation rights or business crimes,for the socialization of criminals,it should be considered to increase a qualification penalty called “prohibited from engaging in some certain occupation”; while the comprehensive probation system has become a new trend of the development of the criminal law in many countries,it is necessary for our country to absorb essences; it can be considered to increase the probation’s upper bound up to five years and regard restorative factors as “would not endanger the society and there is no danger of reoffending”; stipulate alterable execution of penalty under certain circumstances. Secondly,set up a mechanism confirming the influence of compensation on criminal liability. Coercive criminal compensation has the function of punishing the criminal and preventing recommitting. Its social function is a component of the function of criminal law. The criminal liability of the defendant can be lightened or reduced when the victim gets rescue and reimbursement for specific damage. Thirdly,give the victim the right demanding compensation for mental suffering. If the compensation for mental suffering demanded by the victim of criminal cases cannot be supported by the criminal law,it makes the criminal law incomplete concerning social function and it reflects the problem of connection between the tort liability and the criminal law. It lacks legitimacy in logic and makes it ineffective when relieving specific victims. Fourthly,stipulate that restorative acts are legal condition to get lenient penalty. If the defendant shows repentance actively,assumes his civil and administrative liability, restores social relation positively and completely and gains forgiveness from the victim,he can be exempted from penalty. if the defendant shows repentance,lower his subjective malignance and personal dangers and restores social relation generally, his penalty can be lightened or reduced. Fifthly,enlarge the application of non-penalty method. The restrictive requirement of article 37 in the criminal law – minor crimes that is not necessary to impose penalty – shall be removed and the non-penalty method can applied in the handling,synergy and restoration of all criminal cases.The second section is the improvement of procedural law. Firstly,strengthen on the safeguard of victim’s rights including the right to participate in the criminal litigation,bring an incidental civil action,state his opinions,get the protection as a witness,and get judicial relieve and state compensation. Secondly,improve the institute of criminal reconciliation. It is necessary to enlarge the scope of cases that reconciliation can be adopted. It shall not be restricted on defendants sentenced to imprisonment under three years,criminal detention or public surveillance and it shall not be restricted on crimes within the two chapters. Crimes of disrupting the order of the socialist market economy shall also be possible to adopt criminal reconciliation. The judicial authority is entitled to make an agreement reached in criminal reconciliation and the criminal reconciliation affects only the penalty instead of the name of the crime. Thirdly, strengthen an institute that defers prosecution temporarily. If the suspect has been considered as guilty but concerning all factors such as his age,manifestation of repentance,compensation made to the victim,it can be decided to defer prosecution temporarily. Fourthly, set up the institute of pleading guilty and negotiation. In criminal litigation,it is more appropriate that the negotiation on punishment be initiated by the investigation staff and conducted between the prosecutor and the defendant. They conclude an agreement of negotiation if they reach agreement and the judge makes judgment with reference to this agreement.