On The Legal Supervision Of Penalty Enforcement

The penalty enforcement is the last link of the criminal procedure,and also the commonly neglected one.The realization of criminal penalty function and value depends on the effect of the penalty enforcement,in which circumstance legal supervision power over the penalty enforcement is born in order to ensure that the penalty enforcement according to the law.In other words,the legal supervision power over the penalty enforcement which is the crucial to criminal procedure law and criminal substantive law is the fundamental bond between the penalty enforcement power and legal supervision power.In recent years,the legal supervision of penalty enforcement in China arouses public attention as a relatively weak in criminal proceduresupervision.Although there are improvements in judicial practice and theoretical research on legal supervision power over the penalty enforcement and its realization,problems are still seriously remained.Specifically,there are obvious defects in legislation,such as incomplete regulations,even blank content,disordered system,indefinite power boundary and so on;moreover,regulations contradictions and operability deficiencies have not yet been solve defficiently.In institutional mechanisms,the current decentralized enforcement pattern and the mere law supervision method,through which legal supervision power over the penalty enforcement operates,lead to incompatibility between supervision over the penalty enforcement and its operation,incompletion supervision implement and dissatisfaction supervision effectiveness,and many other issues.In judicial practice,there are supervision blindness to varying degrees in all procedures of the penalty enforcement,including sentence,delivery,enforcement,and termination.In theoretical research,systemicstudies on the legal supervision power over the penalty enforcement are still a virgin filed.Consequently,there are critical importance on both intensifying theoretical research and completing legislations and implications in systematically studying on legal supervision power over the penalty enforcement,analyzing problems in legislation and practice,and exploring the methods to improve legislations and implications.This Ph.D.Dissertation is composed of six chapters besides the introduction and the epilogue.Chapter I mainly introduces the basic contents of the legal supervision of penalty enforcement.Firstly,the concepts,qualities,characteristics of the legal supervision of penalty enforcement are discussed;the nature of legal supervision power over the penalty enforcement is restricting the judicial power and executive power with supervision power,which can show the legal supervision nature of prosecuting authorities directly.And then,the sources,scopes,principles,means,modes and operating patterns of legal supervision power over the penalty enforcement are discussed.Chapter II summarizes the basic theories of the legal supervision of penalty enforcement,including the purposes,functions,values,structures and so on.The legal supervision of penalty enforcement,is an inherent supervision power since the establishment of prosecuting authorities,but compared to the other powers of the prosecuting authorities,theoretical researches on the legal supervision of penalty enforcement relatively weak.Therefore,deep and systematic study on the basis,purposes,values,functions and principles of the legal supervision of penalty enforcement,is fundamental to explore the legal supervision approach over the penalty enforcement in China.Chapter III deals with the evolution and development of the legal supervision of penalty enforcement in China from the historical perspective.Firstly,the legal supervision of penalty enforcement in ancient law is introduced;secondly,the legal supervision of penalty enforcement in prosecuting system from late Qing dynasty to new democratic revolution in modern China is introduced;lastly,the legal supervision of penalty enforcement in new China is introduced in three stage--the circuitous stage,the normal stage,and the reform andinnovation stage.By historical exploration in the legal supervision of penalty enforcement of ancient and modern China,clarifying the emergence and development of the legal supervision of penalty enforcement,recognition and inspiration on the legal supervision of penalty enforcement will be established.Current the legal supervision of penalty enforcement is the result of its development after a long practice,and also a system still in use,thus it will be clarified in particularly.Chapter IV aims to make a comparative study on the legal supervision of penalty enforcement abroad.A conclusion comes out that countries set up organizations to supervise the the penalty enforcement basing on the study about the legal supervision of penalty enforcement in common law countries represented by UK and US,in civil law countries represented by France,German and Japan,and in Russian as well as Taiwan Region of Republic of China.The comparative study gives us some enlightenments.First of all,there are a kind of differences in the functions—the legal supervision of penalty enforcement,of procuratorial authorities around the world affected by the factors,such as history,cultural,legal tradition and economic status.Secondly,each country has its own merits which are instructive as for the functions of procuratorial authorities to the enforcement of death penalty,enforcement of freedom penalty,enforcement of property-oriented penalties and supervision on places for the penalty enforcement.Lastly,the comparative study is instructive to perfect the the penalty enforcement and supervision over places for the penalty enforcement in China.On the one hand,more powers shall be empowered to procuratorial authorities,and supervision and enforcement power are included;on the other hand,the power to regular or sudden procuratorial work shall be empowered to the department of the legal supervision of penalty enforcement.Chapter V teases out the status and problems of the legal supervision system of penalty enforcement in China.Firstly,procuratorial authorities are not the instructor or the executors of criminal penalty but merely subjects of supervision who exercise responsibility of the legal supervision of penalty enforcement after the dispersed-type criminal penalty enforcement system are teased out in the chapter.Base on fact that procuratorial authorities are subjects of supervision in the legal supervision of penalty enforcement,the chapter introduces new responsibilities of the legal supervision of penalty enforcement empowered to procuratorial authorities by Criminal Procedural Law revised in 2012.Secondly,the chapter points out some deficiencies exist in the legal supervision of penalty enforcement.The legislation of the legal supervision of penalty enforcement that is unscientific,unsystematic and weak in enforcement lacks accesses to ensure supervision.In addition,there are disadvantages in the mechanism of separation-type of supervision power and enforcement and problems to be solved in the whole legal supervision of penalty enforcement.Thirdly,the chapter discusses the legal supervision of penalty enforcement,in the reform of the judicial system,and summarizes the practice experience everywhere from 2002.Lastly,it forecast where the legal supervision system of the penalty enforcement will go,and more work needed be done in order to exercise the legal supervision of penalty enforcement responsibility.And contents and executive methods of the legal supervision system of penalty enforcement shall be perfected if it will be integrated with reform of the penalty enforcement.Otherwise,detailed,normative and rigorous system mechanism and procedure are needed if legal supervision work well and achieve the goal of being a country under the rule of law.Chapter VI discusses the ways to perfect the legal supervision system of the penalty enforcement.The article figures that many problems existing in enforcement system which are mainly caused by unscientific enforcement system.In recent years,the enforcement system is only modified in detail and in part,by which the desired results can't be achieved.On the contrary,respectively modification and partly reform has lead to the confliction among laws and regulation,and problems in the integration process also emerge.Therefore,it's necessary to build the enforcement and supervision system of penalty enforcement with Chinese characteristics that is adapt to the current social development on the base of strategy over development of social under the rule of law.The article that raises a plan to allocate power of the enforcement and supervision of penalty enforcement,and that conceives a framework as well as a plan to perfect the enforcement and supervision system of penalty enforcement,proposes comprehensive solutions.