On System Of Meritorious Service In The Perspection Of Penal Discretion

There are two broad and narrow senses about meritorious service.Meritorious service, innarrow meaning, a circumstance for discretion of punishment, is a special system ofmeasurement of punishment applied to those criminals who have performed meritoriousservice Although it is important in inspiring offenders to repent, breaking up criminal alliance,retrenching judicial resources and preventing crimes, this system hasn’t received enoughattention from academic circles. Now academic research is mainly confined to practical level,some researchers even have questioned this system’s existing value. The weak researchsituation has greatly puzzled its application and healthy development. It is necessary to makepractical and theoretical study on Rendering Meritorious service so as to bring its role intofull play. Under the guidance of the theories of the Criminal Law of the People’s Republic ofChina.this dissertation holds that this system embodies binary value of utilitarianism andJustice, and has solid moral, philosophy, theory, policy and practice foundations. On the basisof affirming the function of this system, the paper analyses problems such as constitution,identification and penal application which belong to knotty problems in detail to realizeoriginal intention of legislature better, which includes the following chapters.The first chapter presents an introduction to Meritorious performance, mainly concerningabout four sections such as a brief historical development in the domestic and foreign criminallaw history, conception,foundation and value.The evolution of meritorious service can bedivided into three stages: the ancient era, the Republic of China era, the socialist era of newChina. The Meritorious service can be traced back to Fengzhenshi in Qing Dynasty and isalways goes with system of surrendering oneself to judicial organ in the ling ancient times.Inthe course of modern times stipulations that prisoners with actions out of goodwill should beawarded can be found in Prison legal system. The Meritorious services in democraticrevolution era met the demands of the political struggles at that time. After the People’sRepublic of China was established, single criminal codes、governmental orders and judicialinterpretations enacted before the first criminal code was laid down made it a rule thatcriminals be encouraged to perform meritorious services to atone for their crimes. CriminalCode enacted in1997changes the meritorious services from dependant position toindependent one.However, there is a different position in foreign countries’ counterpart,which is either brought into the range of “the act and attitude after the criminal action of the offender” or is mixed with other circumstances. Yet there are also many similar provisionsapplied to criminals conducting serious crimes. So the related provisions in foreign countries’criminal law are not outshone but maybe conducive to unfolding the system’s function incombating serious crimes such as drug, terrorism crimes. The meritorious performance,whichis not particular to criminal law,is an important behavior carried out by person in all walkslife.The concept of the meritorious performance is based on the correction understanding ofits essence, which is a kind of behavior beneficial to the country and society and promotessocial warfare.So the meritorious performance in the criminal law is one performed by thecriminal to do good to the country and society. Although system of immunity of taintedwitness practiced in many foreign countries is similar to meritorious performance inpreventing crimes and helping to bring about cooperation between criminals and judicialorgans, essential difference exists in theoretical bases,system designs and other ways. It iswrong to lump together the two systems. Meritorious performance in effect can not becompared with the immunity of tainted witness in obtaining evidence. It is appropriated thatthe immunity of tainted witness be instituted some day to solve the problem of how to captureevidence to cope with serious crimes. The intrinsic quality of the meritorious performancesystem lies in the double utilitarianism to both the state and the accused. The meritoriousperformance system’s value is justice as the base and utility as the goal. Its value orientationremains to be that consideration must be given to compromise utility with justice so as topreserve their balance. The meritorious performance system must be preserved because it’sutility value. The idea of favoring one and being prejudiced against the other should beabandoned. Acquiring some criminal clues that indicates other person may be guilty throughillegal means should not be regarded as the meritorious performance because it violates thejustice value orientation seriously.The second Chapter is mainly concerned about the identification of renderingmeritorious service. The requisites of constitution of rendering meritorious service arespecifications by which an action can be identified as rendering meritorious service. There aredifferent understanding about the establishing constitutions of rendering meritorious service,such as two-condition opinion, three-condition opinion, four and five-condition opinion. Theconstitutions of rendering meritorious service should be named correctly so as to avoid anerror in logic and variation. Subjective and confirmative conditions should be excluded fromour discussion. As far as the author’s concern, four constitutions are necessary, which are the subject, the time, the act and the effect requirement. The subject requirement is that the personwho performs meritorious service is an offender who has been accused to committing a crime.The time is started from the crime to an effective judgment or ruling. The active condition isthe five meritorious services stipulated in1997Criminal Law and Judicial interpretations, thelast one means the meritorious service must be true and has exercised objective effects. Thispart also probes into how to understand “another person” and “criminal behavour”in exposingmanifestation of meritorious performance. In such situations as joint crimes, involved offenseand correspondence offense, when an offender makes a clean breast of his crime, hisconfession relate to an offence committed by his accomplice. Can the accomplice be seen as“another person”? Narrowly speaking, an accomplice can been seen as joint offenders, whilehi is an offender who jointly commits the same crime in a broad sense. An accomplice in thelatter lies in joint crimes, correspondence offence and involved offence. When a Joint criminalexposes a joint offence committed by other joint criminals, this exposure can be determined tobe confession, voluntary surrender. As not all correspondence offenders are joint criminals,we can not copy the above mentioned principles on joint criminals in determining the naturethat one party in correspondence offender exposing the other’s crimes. Whether both partiesand only one party constitutes crimes, we must inspect so as to decide whether the admissionhas exceeded his own crimes, If the answer is affirmative, we can conclude that the admissionbelongs to meritorious service. On the other hand, the admission to be voluntary surrender orconfession and it is impossible to be meritorious service. When the involved offender bringsthe principal offender to light, As clearly knowing is the content of subjective constitutiverequirement of involved offender, this confession can be meritorious service.“Criminalbehaviors”is a kind of manifestation which corresponds to objective criminal characteristicsand other person can be aware of.exposing an behavior conducted seriously harmful tosociety by person under criminal responsibility age of with mental disorder, exposing suchcrimes as the limitation period for criminal prosecution has expired, an exemption of criminalpunishment has been granted in a special amnesty decree, the criminal suspect or defendant isdeceased, such behaviors can be determined to meritorious service. Common types that acriminal suspect assists the judicial office in capturing another suspect are the following:pointing out another criminal suspect on the spot, leading the policemen to arrest anothercriminal suspect, providing hiding-place clues to the policemen and telephoning anothercriminal in accordance with policeman’s requirements. Captured criminal suspect is one besides an accomplice. As to producing key clues for solving other cases, the followingshould be paid attention to that clues are different from evidence, that clues must be clear, thatclues must be important, that clues should be verified through investigation. The way ofpreventing another person from conducting criminal activities must be that adopting vigorousmeasures to achieve his aim. The person who is prevented should be ongoing. It is notnecessary to limit the range of “other striking services beneficial to the country and society”tohelp the judicial organs to solve other criminal cases. That a criminal persuades someone togive himself up is this kinds of meritorious service yet that contributes a large sum of moneyis not. Penalty, social influence and major contribution standards are three criteria ofdetermining whether a meritorious performance is major or not. Penalty standard is one thatthe criminal who are exposed maybe given a life sentence or more severe punishment. Penaltyhere is prescribed penalty instead of the sentenced penalty. If the criminal exposed issentenced ahead of the exposing criminal, whether the meritorious service is major or notshould be decided according to the factual sentence of the criminal denounced. It is importantthat criterion of social influence exists, whose practical content can be determined byreference of Sichuan standard in deciding major and important cases in crimes of corruptionand bribery, nonfeasance offence and economic crime. Greater contribution criterion is mainlyabout services having nothing to do with crimes such as having inventions or importanttechnical innovations to his credit. Helping the criminal to perform the meritorious serviceonly exists in assisting the judicial organs to finish litigation action such as tracking down andarresting other criminals Undetained criminal suspect or the defendant gets the informationrelated to other person’s crime from his relative,friends or attorney, then exposes to thejudicial organ,the criminal’s exposition can be deemed to be the meritorious service. It isforbidden that the attorney take advantage of the opportunities of meeting, corresponding withthe criminals to transmit messages to help the criminals to escape penalty. State functionariescan not provide the messages which are from his duty and power to the criminal to escapepenalty. Criminals expose the message obtained from the detained criminals lawfully as longas his exposition can be determined to be the meritorious service. Only when the criminaltakes concerted action in opportunity-providing entrapment other than criminal intententrapment can the criminal’s exposing and assisting behavior be seen as to be meritoriousservice. If the state functionaries taking the responsibilities of prohibiting crimes acquire theclues by which the criminal can achieve to perform meritorious service from his position and power, their exposing and assisting behavior could not be deemed to be meritorious services.As to the verification through investigation, the following are needed to be mentioned: theorgans who enjoy the power to verify are investigating organs; the time length should not beprescribed. No matter whether the criminal who might be sentenced to death performed majoror common meritorious seice,only after his exposing or assisting behavior is verified can hiscase be judged; when the verification to truth is made after the judgement,we should abate hispenalty as to common meritorious service or initiate procedure of second instance to changehis former judgment. If the exposed person is deemed to be criminal because the fact of hiscrime has been ascertained, the evidence is reliable and sufficient, the decision that theinvestigation to be truth can be made. The source of clues must be made clear. Theinvestigating truth must be feed back and the required information must be provided. People’scourt enjoys the power of deciding whether the criminal has performed meritorious service ornot. When the people’s procuratorate decides not to initiate a prosecution with respect to acase that is minor and the offender need not be given criminal punishment or need beexempted from it according to the criminal Law, the people’s procuratorate enjoys thedeciding power.Chapter three focus on the law consequence of meritorious performance, which mainlydiscusses the foundation and the application of commutation of penalty. The main ground forlighter punishment is the reduction of criminal’s personal dangerousness, the secondary one isthe repay for his contribution to the country and society. Meritorious performance belongs tolegal circumstances.It is not desirable that the idea that meritorious performance should bediscretional because the thinking mode is simple, it is not helpful to resolve the problem, it isof little attraction to the defendant and it were legislation retrogression.Meritoriousperformance belongs to circumstance which may rather than must lead to commute penalty.The following are not commutable: the criminal premeditates to render meritorious service.The criminal shows no signs of repentance,the criminal conducts crimes with the most meantrick, the most despicable intention and heaviest social influence etc.When sentencing acriminal rendering meritorious service, the reduction extent shall e imposed based on thefacts,the nature of the crime,the intention,number of times of meritorious service, the orderof a lighter, mitigated punishment,the criminal’s assisting effort.The third section discusseshow to deal with meritorious service coinciding with other lighter, mitigatedcircumstance.For example,several lighter circumstances can not be changed to a mitigated circumstance. If the criminal can enjoy a mitigated punishment because of his meritoriousservice, and at the same time he also has lighter circumstances, it is forbidden that themitigated circumstance assimilates lighter ones. Several mitigated circumstances onlyapproach but can not become one exempted circumstance.The last chapter proposes specific ideas and suggestions on the system’s perfection. Inmy opinion, the system’s perfection shall be discussed from angles of legislative and judicialinterpretation.As to legislative improvement,the article that “Those who not only conductsvoluntary surrender but also renders common meritorious service may be given a lighter orbe exempted from punishment” shall be provided. The stipulation of law consequences aboutthose who conducts voluntary surrender but also renders treat meritorious service is basicallyappropriate, yet in some cases weighing of the penalty may easily be thrown off balance, it isrecommended that the article shall be corrected as “Those who not only conducts voluntarysurrender but also renders great meritorious service shall be given a lighter or mitigatedpunishment or be exempted from punishment”. An article shall be added to Chapter Ⅴ OtherProvisions to clear about meritorious performance and cancel the related sections in Article78so as to harmonize the Criminal Law. As to the perfection of judicial interpretation,meritorious service shall begin after crime. Determination of great meritorious service shallbe gone by actual punishment’s pronouncement except the exposed criminal be sentencedfixed-term imprisonment according to the new circumstances which are formed after theexposing criminal rendered meritorious service.“other prominent contributions to the countryand society” shall be stipulated in more detail. At least, the following shall be added to“Assisting the judicial organs to seize important spoils in other criminal cases, avoiding greatlosses in natural disasters and contingencies, having important inventions to his credit.” Tostandardize the verification and determination tasks about meritorious service, it is necessaryto set up the information and registration procedure, the leading verification organs, theverification through investigation procedure.