Reseach On Repentance In Criminal Law

"Repentance" is crucial in the criminal legal system of our country.It is involved in all criminal cases,it leads to many questions and problems in criminal practice,and they need the answers of criminal theory.This paper intends to build the instructure of repentance details of criminal law,expecting to have a little influence in criminal law confirming repentance and related theory research.This paper believes that repentance is an independent part in criminal law.Compared with other parts,it has different characteristics.Although the word "repentance" is only seen in Article 67 of the Criminal Law of China and is rarely seen in judicial interpretations,penitence is the plot that is involved in almost every criminal case.Although there is no legal basis for it as an evidence of light sentences,it has been used as a basis for light sentences in judicial practice.The criminal law of our country only stipulates the form of penitence as a form of self-confidence,confession,meritorious service,and it does not clearly stipulate the case of penitence other than those forms.The determination of other repentant manifestations is generally used as a discretionary punishment measure,and the judiciary judges itself according to judicial discretion.This makes the recognition of the type of repentance expression in various standards,for example,many places will ignore the circumstances in which the perpetrator commits penitence towards the victim.Moreover,"repentance" is a subjective state of mind.Judicial personnel can only determine the existence of a penitent psychology through the behavior and performance of the perpetrators.This is a judgment that is difficult to unify.In addition,criminal law does not explicitly identify the type of penitence,which makes this determination more difficult.However,the other forms of penitence,besides surrender,confession,and meritorious service,are also widely used in sentencing.Therefore,this paper systematically analyzes the theory of repentance,and based on these characteristics,it puts forward the specific plans for the legislative model and judicial strategy of penitential issues in criminal law.The paper is divided into six chapters.The main contents of each chapter are as follows:The first chapter is "The Research Approach to Penitential Questions in Criminal Law".This chapter is divided into four sections.In the first section,the writer teases out the issues of penitence in criminal law,and enumerates the explicit manifestations and implicit existences of repentance in China's criminal legislation and judiciary.The author believes that there are several problems in the current penitential study,one of which is the blank of penitentiary definition,the other is the vagueness of penitentiary recognition,and the third is the uncertainty of the type of penitence,which are presented intuitively through diagrams and cases.The second section describes the research status of penitential issues in criminal law.The writer sorts out the theoretical academic viewpoints,the frontier issues and the current research on penitential sin,to present the controversial focus.The third section focuses on the significance of excavating the issue of penitence in criminal law.This article believes that penitential penalties are clearly stipulated as one of the essential conditions for applying probation,commutation,and parole in China's criminal law.However,as an important matter of light penalties,it has not been comprehensively and uniformly stipulated in China's criminal law.Therefore,it is necessary to construct the basic theory of penitence.The fourth section analyzes the innovations in this article on the study of penitence.The first is the innovation in research perspectives.Research on guilty pleas and punishment is in full swing.But research on penitence has been shelved,especially the role of penitence in the conviction stage has attracted less attention.This article attempts to sort out the omissions in these theoretical studies and analysis.The next part is innovation in the research paradigm.The article comprehensively collates all the laws,judicial interpretations,and local regulations concerning penitence in criminal law(see Exhibit 1).When analyzing the problems of repentance in criminal justice,introduced typical cases and guidance cases of Supreme Court Supreme Law,reflecting on the omissions in legislation through judicial practice.In addition,the quantitative analysis method was used in this study to statistically analyze the penitence of Shanghai prisoners in the community.It is hoped that the scientific viewpoint will be used to verify the viewpoint of this article.The second chapter is "the Basic Concept of Penal Repentance".This chapter is divided into four sections.The first section defines and locates repentance.According to the provisions of the criminal law,the manifestation of repentance or the performance of repentance is the essential condition for determining whether probation or parole can be applied.In judicial practice,the performance of penitence is an important discretionary aspect of sentencing.Although penitence is so important in judicial practice,its definition is rather vague.Some researchers have pointed out that there is still no clear definition as to what constitutes repentance,and it is difficult to quantify it.This makes the judge have much power to determine whether there is penitence and it urgently needs further study.The second section analyzes the characterization of penitential sin.Repenting of crimes is more of a subjective attitude,so this article confirms and fixes the repentance of crimes through language representation and behavioral representation.The third section defines the crime of repentance from the scope of time and space and further confirms the form of repentance.The fourth section discriminates between repentance and confession.These are two similar and confusing concepts,but their meanings and effects on criminal law are completely different.Therefore,the paper sorts out the relations between them,to solve the cognitive difficulties in criminal justice practice.The third chapter is "the Theoretical Basis for the Repentance of Sin." This chapter is divided into three sections.The focus of this chapter is to clarify the relevant theoretical support.The first section is the purpose of repentance and penalty,to explain that repentance is due to the consideration of the special prevention purpose of punishment.After confirming that the offender has repented of his guilt,he will be given opportunities to reform and be re-employed to achieve the purpose of crime prevention.The second section is the function of penitence and penalty.Proposing the existence of penitence in the deterrence,isolation,and correction of punishment,is beneficial to the acceptance of the theory of repentance from the crime in the practice of criminal law in our country.The third section proposes that penitence is an important criterion for testing the purpose and function of penalty.Judicial practice has proved that,because of the shortcomings of the traditional concept of punishment,the resources needed of retribution,deterrence,correction or their combination,are not only huge,but the effect is not obvious and does not reach people's expectations.The harsh reality forced us to reflect on the traditional concept of punishment.In modern society,penalty is no longer a punishment based on retribution,it is no longer a simple punishment tool or means.Instead,justice should be pursued as the preferred value goal and subject to the principle of justice.In other words,maintaining the concept of justice in society should be an indispensable part of the concept of punishment.The fourth chapter is "Repentence in Confessions." This chapter is divided into three sections.According to the usual understanding,penitence generally takes effect in the stage of sentencing and execution,and it is a crime already known to repent,so penitence is a post-crime plot.The theory of criminal law generally believes that the conviction is limited to the circumstances of the crime,and that the post-crisis circumstances appear after the crime has occurred,and it is itself separated from the constitutive elements of the crime and cannot be part of the conviction.Therefore,in principle,the post-incrimination scenario exists as a sentencing scenario.The criminal behavior of a criminal agent affects the harm and extent of a criminal act,expresses his attitude toward his own crime,and reflects his degree of subjective viciousness,thus affecting specific sentencing.So what is the effect of penitence on conviction,as described in the previous article,but this article finds that the terms of the proviso are the consequences of the conviction in the conviction stage,and it was decided to set it out in a separate chapter.The first section will sort out the penitential plots that affect the conviction,especially the consideration that the repentance is broadened according to the judgment of personal danger.The second section discusses the issue of the plot in the constitution of the crime and proposes that the prosecution is the legal source of conviction in the conviction stage.The third section analyzes the effect of penitence on conviction.The role of the penitential plot in the conviction stage is to offend or reduce the penalty level.The fifth chapter is "Problems of Penal Penalization at the Stage of Sentencing".This chapter is divided into three sections.The first section reviews the penitential plots that affect sentencing,starting from the criminal laws of foreign countries(Russia,Romania,Portugal,Germany,etc.)and the criminal laws of China(including Taiwan).The second section studies the direction of retribution affecting sentencing.From the attitude of positive repentance,refusal to repentance attitude on the impact of sentencing and the determination of the proportion of detailed classification.The direction of retribution affecting sentencing can only be a lighter punishment for criminal offenders with penitential circumstances,that is,repentance in the process of sentencing can only be applied as a light-penalized offense,and it cannot influence the sentencing or reduce the punishment.And through a longitudinal analysis of the position and direction of penitence in the process of sentencing,and a comparison of the proportions of penalties related to voluntary surrender,meritorious service,and compensation for victims' losses,this paper argues that the proportion of penalties for penitence should be stipulated for minors and the elderly.The benchmark penalty is less than 30%,while for adults it is stipulated that less than 20%of the benchmark penalty can be reduced.The third section is an analysis of the application of penitence in the circumstances of the circumstances of a penalty.The penitence studied here is only applicable to the adjustment of the benchmark punishment according to the circumstances of sentencing to determine the stage of the declaration.In the latter stage,the circumstances of the adjustment of the benchmark penalty are mainly the plots of crimes that constitute facts,such as penitence,compensation,surrender,meritorious service,recidivism,The temporal and spatial environment of the criminal record,motivation,and crime,etc.,therefore,the combination and cooperation of the penitence discussed in this section under the circumstances of the circumstances of the measurement and punishment is mainly to discuss the issue of the circumstances of the circumstances of sentencing besides the constitutional facts of repentance and crime at the stage of declaring the penalty.The six chapter is "Penitence at the Stage of Execution".This chapter is divided into four sections.The first section also sorts out the penitential plots that affect the execution and classifies and refines them.In the second,third,and fourth quarters,the penalties for repentance and probation,preconditions for commutation,and preconditions for parole were combined to study the three progressive cases.The recognition of penitence in the application of these three links was combined one by one,from theory to the guidance of specific judicial practice.As a whole,the problem of penitence is still not fully and effectively reflected in the criminal law,and only the expression is reflected in the crime of corruption.And the penitential plot,as a further level than the confession plot,is rarely noticed.There are many subjective factors in the identification of penitence,it is not easy to determine that it is difficult to apply judicial application of penitence accurately,but we should not stand still.Perpetrator's repentence determines the size of the prosecution the burden of proof in criminal activity,and it has the huge influence in the criminal and judicial procedure,and it plays a vital role in the conviction and sentencing and execution stage.Therefore,from the perspective of utilitarian evaluation,the choice of confession punishment as the entry point of the system.However,for the criminal law itself,from the perspective of value evaluation,it is necessary to analyze the meaning of penitence in the criminal law and make more people move from confession to repentance.