| Temporary service of sentences outside prison is one of the alternative executions of penalty against freedom.It refers to that the convicts who are sentenced to fixed-term imprisonment or criminal detention or part of the convicts who are sentenced to life imprisonment,under some special conditions that are not appropriate to serve his or her sentence in the prison,are allowed to serve his or her sentence in the open place with examination and approval in according to legal procedure.It is the embodiment of the humanitarian,socialization of penalty and of the criminal policy of combining penalty with leniency.In recent years,while varieties of advancement have been made in several aspects including legislation,legal practice and theory,the problems of which are also quite complicated.In legislation,the unclear provision provided by the Criminal Procedure Law of PRC(2012)in respect of supervision over temporary service of sentences outside prison and the absence of sufficient supporting measures both cause problems in legal practice for no accurate laws and regulations to be followed.There are several authorities which have the right to make examination and determination on the application of the temporary service of sentences outside prison.And the administration approval systems adopted to make examination and determination are full of criticism.The problems including handling case under the influence of personal connection,favor,bribery and lacking enough supervision for the temporary service of sentences outside prison are still quite serious.In theory,the study about the temporary service of sentences outside prison in China is insufficient,lacking further systematic analysis.Hence,not only is it significant to strengthen the theoretical research but also it makes great contribution to operation mechanism through analyzing whole process of penalty execution from the first part of application for approval to the last step of imprisonment,exploring the problems existed in legislation and legal practice and founding the path of reform and improvement.Apart from the introduction,this thesis can be divided into seven parts,accounting 150,000 words.The main idea of each part is as follows:The first part analyzed the historical change and current situation of the temporary service of sentences outside prison.There are three stages of this system: birth in ancient times,emergence before the founding of People's Republic of China,perfection andimprovement after the founding.This system originated in “Songxi system”(a criminal law)of Song Dynasty,and developed through three periods: Qing Dynasty,the period of Republican China and the period of the war against Japan,and further developed and improved after the founding of People's Republic of China.The system of temporary service of sentences outside prison is consistent with the requirements of penalty socialization and the trend of penalty mitigation as well as the idea of combining punishment with leniency.At the same time,the application of the system of temporary service of sentences outside prison is of great significance in guaranteeing the human right of the convicts and releasing the crowding pressure in prison and reducing execution cost,etc.The second part analyzed the basic norms and the implementation of the system of temporary service of sentences outside prison.And the system has been constantly developed since 1979 when it was written in Criminal Procedure Law.The system of temporary service of sentences outside prison is one of the systems of serving sentences outside prison,being concluding and concluded.It is different from bail in several aspects including application conditions,time needed to determine and examination and approval authorities.And the authorities of making determination and approval are multiple,including courts,prison authority and the public security organization.Furthermore,the service of sentences outside prison is temporal and the time of execution outside prison can be counted as the inside imprisonment time.The system was improved in 2012 and the Regulation for the Temporary Service of Sentences outside Prison was enacted in 2014,and the Procedure Regulation for the Temporary Service of Sentences outside Prison was enacted in 2016.Legislation about community correction is actively promoted too.To govern the temporary service of sentences outside prison,the relevant departments introduced series of regulations and judicial documents and the local government also made some operable local regulations which offered fundamental basis for the implementation of the system.But at the same time,the problems in respect of the temporary service of sentences outside prison,including the defects in laws and regulations,illegal release on medical parole,poor coordination between sectors and weak supervision,remain to be resolved.The third part compared and analyzed the similar systems in foreign countries including Germany,Japan,Russia,France and Italy.In Germany,the postponement or termination of the execution of prison sentence is applied to the convicted person who falls seriously ill and the illness cannot be diagnosed or treated in a penal institution or in the hospital of suchinstitution,and an imminent risk to the convicted person's life is to be feared in the case of execution.Execution shall not be interrupted if overriding reasons,especially reasons of public security,so dictate.This stipulation demonstrate that the postponement or termination of the execution in Germany is a humanization way.In Japan,termination of execution of prison sentence can be divided into two kinds,namely,necessary termination and considerate termination.And the postponement provision in Russia has some similarity with the one in Japan for taking the illness and pregnancy into consideration,and the difference is that,in Russia,the execution of prison sentence on woman convict who has child younger than 14 years old is postponed to the time when her child reach the age of 14.This provision is benefit to the growth of juvenile,representing a human care.And the semi-detention system in France grant the convict right to go outside when he or she is serving his or her sentence of imprisonment.It is mainly applied to the convicts who are sentenced to one year's imprisonment or less for the purpose of providing opportunities for him or her to connect with society and family.The policy of postponement execution or execution at domicile in Italy is mainly applied to the convict who is pregnant,HIV affected,or insane,particularly for pregnant convict who is sentenced to less than three years of fixed-term imprisonment,convict who is over 60 years old without ability to take care of himself or herself and who is younger than 21 years old with some special needs in relating to health aspects.Comparing with the system of temporary service of sentences outside prison provided in China,the application scale of the system provided in those foreign countries is wider and the approval authority is specified and centralized.The biggest difference lies in that the time spent outside prison is not counted in the term of imprisonment in those countries.The system of temporary service of sentences outside prison in China shall,using the similar foreign systems as reference,broaden the application scale while narrow down the several approval authorities,and build the multi-supervision mechanism to avoid the right abuse and to prevent and reduce the judicial corruption.The fourth part analyzed the application and approval procedure which is the first step of the temporary service of sentences outside prison.This system is applied to the convict who is sentenced to fixed-term imprisonment,criminal detention and part of the life imprisonment convicts who are in serious disease,pregnant or in lactation periods and who are unable to live on his or her own.Negligent condition refers to the situation that cannot apply to the temporary service of sentences outside prison,including self-injury,self-mutilation,andnoncooperation in treatment.And the convicts who suffer from serious disease like high blood pressure,diabetes and cardio path,without life risk in short time,shall not apply to this system too.Limited condition refers to the situation that the application should be reviewed strictly,including application from the convict who committed abuse-of-power crime,financial crime,gangland related crime,serious crime,and recidivist and from the non-first time application for the temporary service of sentences outside prison.For the convict whose condition is in conformity with the system of temporary service of sentences outside prison and who is not be delivered to the prison,the right of approval or not is laid to the court,and after the delivery,the right is belong to the prison authority or the public security organization.And the determination shall be made public and subject to supervision of the society.With the approval by the penalty enforcement authority,the applicant shall provide guarantor for examination and approval.In China,the guarantor provides security guarantees for the temporary service of sentences outside prison by his personality and there are no accurate regulations to specify the legal responsibility of the guarantors.Furthermore,the penalty enforcement authority shall make risk assessment to the convicts in accordance with the regulation.In the process of the application and determination,there are problems needed to be resolved,including the multiple authorities of making determination,illegal release on medical parole and imperfect remedial system.Wherefore,for the purpose of correcting defects in the several aspects including the multiple authorities in examination and approval procedures,the approval of the self-examination issues,the right of examination and approval shall be entitled to people's courts.Then the regulations about guarantors shall be improved by increasing the number of the guarantors,broadening the scale of guarantor candidates and improving the procedure of examination and approval for better reviewing the qualification of the guarantors.Furthermore,the release on medical parole procedure shall be improved,the information publicity mechanism of temporary service of sentences outside prison shall be enhanced by increasing and broadening publicity of law enforcement,the remedial system for convicts shall be established by adopting the convicts involved procedure to protect the their legal right.The fifth part described the imprisonment procedure of the temporary service of sentences outside prison.The imprisonment is the last part of the system and it is only for the convict subject to the imprisonment condition,not a necessary part for every convict.The condition for the temporary service of sentences outside prison can be divided into two kinds:legal imprisonment condition and considerate imprisonment conditions.The former is applied if the unqualified condition for the temporary service of sentences outside prison was found in the community correction or the condition for the temporary service of sentences outside prison disappeared before the completion of the term of imprisonment;The latter refers to that if(a)the convict fails to perform his or her obligation of reporting his or her behavior to the authority during the period of community correction;(b)the guarantor neither perform the obligation of guarantee nor appoint another guarantor;(c)there is any other violation of the regulations,the convicts will be imprisonment.The procedure of the temporary service of sentences outside prison involves three aspects: application,determination and imprisonment and the details varies from the authority to authority.The general rule of imprisonment is that the Department of Judicial Administration makes suggestion of imprisonment to the authority which made the determination of temporary service of sentences outside prison,and then the authority executed the imprisonment in accordance with the legal procedure.And in the legal practice,where the imprisonment place different from the domicile of the convicts,the imprisonment is hard to be executed and the relevant regulation remains unclear.Wherefore,the improvement shall be made in the following aspects: the principle of imprisonment in the nearest prison of the convicts shall be adopted,imprisonment shall be ordered by the court which have jurisdiction in the place where community correction happened instead of the remote court to resolve the problem of hard communication between different local authorities and to reduce the time for determination and the risk in the process of delivery.And the special conditions such as suspension of correction shall be concluded in the Community Correction Law.The sixth part analyzed the supervision system of the temporary service of sentences outside prison.The inspection and supervision over the system of the temporary execution of the sentence outside prison was amended in Criminal Procedure Law of the People's Republic of China 2012.The amendment strengthens the supervision by revising the post supervision to synchronous supervision.The application of the temporary service of sentences outside prison to the convict who commits the abuse-of-power crime shall abide by the legislative recordation and review system.For the convict who used to occupied county level position,the methods of one case,one filling and submitting layer upon layer for examination and approval shall be adopt to strengthen the supervision.In recent years,the inspection and supervision over the temporary service of sentences outside prison has been strengthened andthus some achievements have been made from it.However,the legislation in respect of inspection and supervision over the temporary service of sentences outside prison in China remains to be imperfect,the process is irregularities and results is not satisfied.Further improvement shall be made in improving legislation,strengthening the rigid supervision of prosecuting authorities,establishing and improving multi-supervision mode,establishing the synchronous supervision mechanism in the process of examination and approval,execution and imprisonment,establishing the interconnected mechanism,applying the case handling mode to the inspection and supervision over temporary service of sentence outside prison and realizing the transformation from “service mode” to “case handling mode”,strengthening accountability mechanism and double examination mechanism to ensure the effective supervision over the system of the temporary service of sentences outside prison.The seventh part described the reform direction of the system of temporary service of sentences outside prison.With more than 30 years development,the system of temporary service of sentences outside prison has been a penalty execution system with Chinese characteristic.This system has been further improved and developed after the promulgation and implementation of the new criminal procedure law.At the same time,this system needs constantly improvement from both legislation and legal practice aspects.Wherefore,in both micro-level and long-term development,the reform for the system of temporary service of sentences outside prison shall be followed by the “six principles”: unification of the law and regulations in respect of temporary service of sentences outside prison system;standardization of the law enforcement criterion;informatization of the law enforcement process;unification of the case management;specialization of the law enforcement group and multiple of the support group in the society.Finally,with the principles can we realize the goal of letting citizens see the fair and justice from every case of temporary service of sentences outside prison. |
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