On The Construction Of Contemporary Chinese Criminal Reconciliation System

Currently, victim-offender-reconciliation system is a hot topic in China’s criminal law theory and practice field, China can implement and how to construct what kind of pattern of the victim-offender-reconciliation system conforms to China’s historical and cultural traditions and objective need of judicial practice, Scholars and practitioners are twittering. Starting with analysis of its production and social background in China and western countries, this dissertation lucubrates the concept and features of it, its theoretical basis and law value in China and western countries, the foundation of constructing criminal reconciliation system and its institutionalized design etc. in contemporary China. On this basis, the author analyses what troubles the criminal reconciliation system and how to settle them.At the same time, the author points out the insufficiency of the relevant criminal law and procedural law, and puts forward some suggestions on perfecting in the criminal legislation. Except for the introduction, this article consists of four parts, with about 150,000 words.The preface mainly introduces ideal target of global interest on how to realize both social return of criminals and protection of the victims in the criminal justice system, and as far as the construction of socialist harmonious society and implementing the policy of "tempering justice with mercy" are concerned, the auther puts forwards that we should on the foundation of local law resources of China, further explore and excavate the origin, the theoretical basis and the value of criminal reconciliation, and summarize the experience and lesson in judicial practice, gradually modify and improve correlative criminal law and procedural law system. The auther thinks that it is necessary to construct and implement victim-offender-reconciliation system in contemporary China.Chapter I is about the summarization of victim-offender-reconciliation system. Firstly, the article analyses the traceability by analyzing the production and social background of victim-offender-reconciliation system in China and western countries. Western criminal reconciliation system originated in the mid-twentieth century, it has two social background factors:one is the failure of the criminal policy with the prison correctional as the center, second is the prosperity of the criminal policy about the protection of the victim. But chasing the traceability, victim-offender-reconciliation system in our country has profound historical culture, the traditional" harmony ", "no litigation " ideas are cultural treasures in constructing the criminal reconciliation system of contemporary China. Therefore, we should value the revaluation of reconciliation, pay attention to the function of reconciliation, grafting foreign advanced ideas and successful experience in criminal reconciliation, realize the revival of victim-offender-reconciliation system on the foundation of traditional local Chinese " harmony "culture resources. Secondly, through comparative analysis the concept of criminal reconciliation at home and abroad, the author puts forward that four factors should be considered in defining criminal reconciliation:criminal reconciliation should not exclude serious criminal cases, unfavorably to limit the scope of mediator, we should not let criminal reconciliation be and shoplifting-spare into the "elder brother ", and criminal reconciliation is not only a kind of criminal litigation system, but also both criminal law and criminal procedural law. And then, the criminal reconciliation is a criminal justice system, which refers to injures and victims reach reconciliation by talking to each other and negotiating directly or through a mediator’s help, when the aggressors confess, compensate and apologize to the victim, through the examination and approval of the state judicial authorities, the aggressor may be exempted from punishment or obtain a mitigated criminal responsibility when the crime has happened. On this basis, the author makes a detailed analysis on criminal reconciliation with related concepts, and elaborates that victim-offender-reconciliation system has five characteristics, which are restorative, consultation, universality, forward-looking and flexibility.Chapter II discusses theoretical basis and value of criminal reconciliation. Firstly, this article introduces and comments on theoretical basis of criminal reconciliation system in China and western countries. Generally, "restorative justice theory", "equity theory" and "narrative theory" are considered as constituting the basic framework of western restorative justice theory. " equity theory" cannot fully deconstruct the value of victim-offender-reconciliation system, it is one-sided and mature, theoretical basis of "narrative theory" is still too thin, " restorative justice theory" is the basic reason which criminal reconciliation can be sublimated as criminal law system. Today, in advocating a socialist harmonious society, implementing of the criminal policy of tempering justice with mercy, criminal reconciliation should coordinate the various interests and take multiple values. Criminal reconciliation not only should seek the balance between efficiency and fairness, but also should seek the balance between entity justice and procedural justice in justice. Therefore, constructing the harmonious society theory is the most basic theoretical basis of victim-offender-reconciliation system in China, criminal policy of tempering justice with mercy is the criminal policy foundation, the objective need of judicial practice is realistic foundation, and the value diversity and various methods of legitimacy is the legal basis. Secondly, Based on the in-depth analysis through fairness and efficiency, freedom and order value of criminal reconciliation system, the author thinks that criminal reconciliation mode in our country never adjusts crime analysis angle of "country-individual" to triangle mode, which society is as vertex, and the victims and injures are as two ends, it is national judicial organ rather than abstract society that leads criminal reconciliation. Therefore, Chinese criminal reconciliation model is based on 3 arris body three-dimensional structure, which country is as vertex, and the victims, injures and society are as three ends, only in this country-injures, victim, and community participation in the three-dimensional structure, polyhedral, comprehensive" restorative justice " may be realized. Therefore, the criminal reconciliation is unfavorably localized as individualism of criminal values. Finally, considered historical stage of development as clues, and compared with differences of class background, human society has generally appeared level order, personal standard order, social standard order and historical materialism order. Thus, human society has generally appeared pure self-help, pure and relief, male relief and self-help complementary and self-help, male relief as four subsidiary criminal dispute resolution mechanism. The idea of criminal reconciliation thinks that under the supervision of the public power, through the "efforts" between private in solving criminal disputes, resolving conflicts should be advocated by laws. Thus, the self-help here is no longer "force" but" efforts " instead.ChapterⅢdiscusses the foundation in constructing criminal reconciliation system in contemporary Chinese. Firstly, after investigating the legal background in constructing criminal reconciliation system, this article thinks "harmony", "no litigation", and "penalty absolve mingde" and "wide leniency" are culture foundation in constructing the victim-offender-reconciliation system, people’s mediation system is the legal basis, criminal reconciliation is developed from Maxiwu judgement way, the criminal policy of tempering justice with mercy is the policy basis. Secondly, this paper argues for constructing the victim-offender-reconciliation system according to law, and think that victim-offender-reconciliation system fits the principle of legality, the principle that everyone is equal before the law, the principle of adaptive principle of suiting punishment to anastomosis, the austerity of criminal law and criminal essential principles, so it has sufficient criminal law foundation. It also fits justice, order, efficiency values in creating criminal proceedings, and it conforms to the characteristics of minors crime and the spirit of no arrest, no prosecution in the legislative system, so it has sufficient procedural law foundation.Chapter IV discusses the institutionalized design of criminal reconciliation in contemporary China. This part of dissertation thoroughly discusses certain aspects constitute the mode of criminal reconciliation system meeting the needs of Chinese historical and cultural tradition, and the objective needs of judicial practice, which are the subject and the scope application, the applied condition and stage, the implementing agency of the criminal reconciliation, the procedural design of criminal reconciliation program, and its legal effect, judicial supervision and control. Firstly, the author deems, criminal reconciliation should be applicable to the crimes which have two fundamental characters----from the view of criminal character, the major object and secondary are both involved in crimes violated individual legal right of person and right of property, and the criminals from the view of subjective malice of the criminal’s mind are mainly first offence, casual offence, negligent crime, suspend crime, accomplice under duress crime of passion etc. Secondly, the criminal reconciliation in criminal lawsuit can be applied during investigation, prosecution, judgment and execution of punishment of various stages:investigative organ after the case being filed may be sentenced to imprisonment which may slightly below the criminal punishment for reconciliation. The prosecutorial organs for prosecution may be sentenced to fixed-term imprisonment of not more than three years which all are a misdemeanor for reconciliation. Judicial organs during judgment may be sentenced to fixed-term imprisonment of not more than three years----all are felonious crime for reconciliation. Even in the penal execution stage, criminal reconciliation program can also be commenced with the willing of both criminals and the victims. At any stage of the criminal settlement process, as the prosecutorial organs and the people’s supervisor with the power to supervise and examine law, and prosecution, should play its important role in criminal settlement of supervision. Thirdly, in the criminal investigation phase, under the examination and approval by the prosecutorial organ being performed or providing effective guarantee, the investigation organ shall withdraw the case. After prosecutorial organs made the decision on approval of the arrest of a criminal suspect, and the reconciliation being established and performed or providing effective guarantee, the prosecutorial organs should make decision on making indictments without arrests against the criminal suspect, the investigative organ should revoke the case after receiving the decision. In the prosecution stage, a reconciliation agreement or an economic compensation has reached by both sides have already implemented to complete or providing effective guarantee, the victim voluntarily gave up or mitigated the criminal suspect criminal responsibility, the prosecutorial organs should make a non-prosecution decision or to make specific opinions about measuring penalty, which should be used as a reference for discretion in courts. In the trial stage, for those crimes who can timely and effectively relieve or eliminate the consequences of the crime, and after mediation of the mediators and understanding by victims, the people’s court may give a lighter or mitigated punishment or the criminal may be exempted from punishment. When consequence of crime is completely eliminated, the criminal may be exempted from criminal punishment or probation. In the circumstances of the heavier crime, afterwards, the criminal actively takes remedial measures for the loss of the victim, and obtain the mediation, moreover the defendant is examined with no possibility to crime again, the criminal may be given a lighter or mitigated punishment or probation. For reconciliation in the criminal prosecution stage and prosecutorial organs’ suggestion, the people’s courts should sentence specific opinions about measuring penalty for the reference of criminal penalty, accordingly, the criminal may be given a lighter or mitigated punishment or be exempted from punishment. In the penal execution stage, to reach a reconciliation agreement and to provide effective guarantee, through the executive punishment authorities, the court’s ruling, and the prosecutorial organs’ review after examination and approval, the prisoners may get commutation, parole or serve sentence outside of prison. Finally, it may be sentenced to imprisonment under punishment, criminal detention or public surveillance and shall also, or shall only, be fined or other minor criminal cases, the criminal reconciliation can be treated as a kind of convicted circumstances. But, for other felony, to protect society, it will only be treated as sentencing circumstances. When treated as legal circumstances, it either can be set as ordered circumstances, or can be set as authorization circumstances. Specific measures for the implementation of the criminal reconciliation, can adopt a similar criminal reconciliation form as hearing. Except for slight criminal cases, in principle, the victim-offender-reconciliation should be adopted in the form of hearing. In addition, based on the analysis of the trouble of criminal reconciliation system, this article points out the insufficiency of the related criminal law and procedural law, and puts forward some suggestions on perfecting criminal legislation.