Research On Operating Mechanism Of Community Corrections

As a newborn criminal system,since its introduction into China,the community correction system has gone through several phases from pilot to all-sided implementation,from simplicity to richness,from fragmentation to standardization.Through the 15 years exploration,the system finds a practice suitable for China's national condition by drawing lessons from foreign experience in this aspect.Remarkable results have been made,while some pressing problems emerge.It is necessary to further explore and properly deal with these problems through the theoretical and practical efforts,especially under the background that the community correction has been included in the national legislative plan and the draft legislation is available to the public to extensively solicit opinions.Problem-orientated work should be done to follow the key links involved in the operating mechanism of community correction to identify the relevant theoretical and practical problems one by one,make interpretation and reflection with an attempt to forming a set of efficient and orderly operating mechanism and providing a feasible reference for the legislation and implementation of community correction.In addition to introduction,this paper is divided into five chapters.When it comes to the overall structure,the first chapter is the basic introduction to the operating mechanism of community correction.The second,third and fourth chapters mainly discuss the core issues involved in each link of operating mechanism in sequential order,and supervisory mechanism in the fifth chapter almost covers the entire process of community correction operating mechanism.The first chapter,an overview of the operating mechanism of community correction.From the perspective of jurisprudence,the logical starting point of the community correction operating mechanism is the basic concept of community correction.The superior concept is the legal operation and legal mechanism.This chapter starts with the study of the concept of community correction,and finds through analysis that the legal operation must be consistent with the characteristics such as regularity,demonstrating the value and embodying the modeling,and that the legal mechanism has the characteristics of fairness,equality,and game-play,and thereby concludes that the operating mechanism of community correction is systemic,incentive and fair;each mechanism has its built-in value which is the foundation and driving force for its generation and development.As a mechanism with strong vitality and prospect of a long-term development,community correction possesses a plenty of values.This paper not only combs the humanitarian value of penalty,legal and economic value that most of scholars recognize,but also fully explores and expounds the value of social welfare which is rarely analyzed in depth in the research;nature is the fundamental attribute that differs one thing from other.This paper at first sorts out the theories of community correction as penalty,the criminal law enforcement and the protection of released prisoners,the treatment related to place,the execution system,the non-custodial sentence execution,the punishment for security and the multiple natures,and then concludes that the nature is unique and exclusive,therefore the nature of the community correction is the penalty enforcement by community and then gives the specific argument.The second chapter,the discussion on the pre-trial investigation and evaluation of community correction operation.Pre-trial investigation and evaluation is a key link before criminals enter the correction stage.The reports on the criminals' situation and whether they are suitable for community corrections play an important reference role for judges'judgment and ruling,and even have certain influence on whether or not criminals can enter the process of community correction.This paper discusses the significance of the pre-trial evaluation system,and explains the necessity of the system from the aspects of execution socialization,scientific and democratic measurement of penalty,and power balance,expounds judicial nature of the system from the aspects of the nature of the pre-trial investigation and evaluation report,whether the penalty is based on the behavior or the person,the boundary of discretionary power and the consideration given to pre-trial investigation and evaluation;this paper is problem-oriented,which finds that the pre-trial investigation and evaluation system has the problems of qualitative ambiguity,unclear right and responsibility,and lack of consideration,and suggests that the pre-trial investigation and evaluation system should be improved to become the necessary procedure to restrict the judge's discretion and comprehensively refine the content.The third chapter,the discussion on the management mechanism of community correction operation.The community correction management mechanism is a pivotal part of the operating mechanism of community correction.The scientific establishment has great influence on the purpose and effectiveness of community correction.On the basis of an introduction to the prototype,development and status quo of community correction management mechanism,this chapter thoroughly analyzes the existing problems in the current management mechanism such as the weak awareness of criminal law enforcement,deficient professional level and the limited functions of the regulatory agencies,and systematically discusses the improvement of management mechanism from the aspects of top-level design and concrete models,and concludes that a series of departments,the community correction bureau-community correction management bureau(community correction office)-community correction division-community correction center,should be established from the central judicial administrative agency to local ones,a parallel management mechanism which is mainly led by local department and assisted by regional department should be put in place,the responsibilities and authorities of community correction center and judicial office should be redevised in the work of community correction,and the correction projects that are suitable for uniform implementation should be organized by community correction center to reduce the workload of judicial office and improve the quality of correction.The fourth chapter,the discussion on the post-correction evaluation of community correction operation.The post-correction evaluation is one of the important links in the operating mechanism of community correction.It involves multiple aspects,including the judgment of the effect of correction measures,the measurement of the correction status of person subject to the correction,and the evaluation of performance of the institutions responsible for correction.This chapter introduces the status quo of China's post-correction evaluation from aspects of cost-benefit-oriented investigation,analysis of recidivism standards,review of failure rates of probation and parole,and then points out that China's current post-correction evaluation has the limitations of insufficient legal basis,non-standard evaluation,unified standard,and inadequate subject responsible for evaluation.It is proposed that in accordance with the principles of combining science with humanity,index system for the evaluation of the effect of community correction should include the indicators such as recidivism rate,mental health assessment,tendency to reengage in the society,punishment effectiveness,emotion,awareness,ability,bad social behavior and environmental adaptability so as to improve the existing evaluation system and achieve an effective assessment of the quality of community correction.The fifth chapter,the discussion on the supervisory mechanism of community correction operation.This chapter mainly discusses three forms of supervision:supervision by the people's congress,supervision by investigating and prosecuting organ,and supervision by society.The supervision by the people's congress has the nature of supervision by organ of power,possessing the superior status and power in China's supervision system.This paper discusses the value of supervision by the people's congress from the perspectives of the judicial administrative organs,the people's congress and the public,analyzes the performance of subjects of supervision including the people's congress at all level,standing committees of people's congresses at and above the county level,and the representatives of people's congress at all level,and thereby put forward four suggestions for improvement including standardization of supervision content,the standardization of the supervision model,the standardization of supervision results,and the standardization of supervision of the subject.The supervision by investigating and prosecuting organ is the legal supervision clearly stipulated in the constitution,which is the most professional and comprehensive among the supervisions on community correction.This paper,on the basis of introducing the concept,content and characteristics of the community correction supervision by investigating and prosecuting department,thinks that the supervision of this kind has the problems of insufficient attention attached to it,less-perfect legal regulations,weak supervision power,scanty clues and lack of determination in supervision.Three paths for improvement are proposed.The first is to identify the orientation and allocate and strengthen power for supervision.The second is to improve the law and enhance the rigidity of supervision.The third is to broaden the approaches to realize the supervision covering the whole process.The supervision by society,as an important complement to the public power supervision,can effectively make up for the shortness of public power supervision because of its extensive coverage of specific subjects,timeliness,and non-mandatory effects.This paper introduces four forms of supervision,i.e.supervision by the public,supervision by civil society organizations,supervision by interest groups,and supervision by public opinion,and then analyzes the dilemma of supervision by society from three perspectives including the subject of supervision,the object of supervision,and the carrier of supervision.This leads to the approaches for improvement which are based on six aspects,that is,the development of market economy,the strengthening of supervision by the public,the promotion of the transparency of implementation right involved in community correction,the guidance for media supervision,the improvement of the performance evaluation mechanism,and the completion of the right protection mechanism.