A Study On The System Of Misdemeanor

From the perspective of integrated criminal science,it is both practical and urgent,in the context of changing function of criminal law,to conduct studies dressing the existence and form of misdemeanor and misdemeanor system in China's criminal justice,the effectiveness of integration of substantial and procedural law and the regulating functioning of misdemeanor,and the establishment of misdemeanor system,if necessary,with interactive and co-evolution structure of criminal law and criminal procedural law.This thesis believes that the construction of misdemeanor system is a reasonable option in the era of tightening net of justice and more mitigatory penalties.It helps to improve the sanction system for illegal and criminal acts,contributes to the effective diversion of cases,promotes judicial efficiency,and facilitates reform of criminal perceptions and perpetrators return to society as soon as possible.Based upon the practicality of China's criminal law,this paper anatomizes the difficult situation of judicial practice with absence of misdemeanor system and intends to explore the effective approach of rational construction of misdemeanor system.This paper is divided into five chapters besides introduction and conclusion.Chapter one,the theoretical basis of misdemeanor system.In the field of criminal justice in China,there are many misdemeanor-associated concepts such as "minor criminal cases","minor crime" and so on.As conceptual abstraction,the classification of misdemeanor and felony should be based on crime itself,which requires adherence to the principle of statutory penalty in criminal law.Therefore,misdemeanor is one type of crime with fulfillment of all constitutive elements.For reason of specific values,crime of lesser seriousness,social danger and penalty is defined as misdemeanor,in contrast to felony,with special institutional arrangements.In criminal system there is objective existence of grouping of misdemeanor and felony.It can be noticed that there are typical examples of misdemeanor regulated in criminal law,including but not limited to crime of using false identity documents or stealing identity documents,crime of substitute-cheating in exams,crime of dangerous driving.Misdemeanor can be divided into different types in terms of various criteria.The first division is pure misdemeanor,referring to a crime of which the penalty is entirely within the criterion of misdemeanor,and relative misdemeanor,referring to a crime of which the penalty grades are both within and beyond the criterion of misdemeanor and its classification is determined in accordance with specific grade.The second division is natural misdemeanor and statutory misdemeanor,in accordance with the division of natural crime and statutory crime,which differentiates in terms of the formation mechanism of constitutive elements,the influence of crime quantity,the recognition of illegality by behavioral subject,as well as the distinction of defining similar crimes.The third division,which is not advocated in this paper,is misdemeanor and venial crime,which can be seen as one kind of misdemeanor but in concept can cause confusion between public security administration punishments and criminal penalty.The objective existence of misdemeanor requires corresponding existence of misdemeanor system,which is absent,in a sense of unity,from the criminal law in China.Some scholars negate the establishment of misdemeanor system,thinking that it will inevitably lead to the irrational expansion of criminal circles as reflection of omnipotence of criminal law,and it is of no operability and not a rational,scientific and economical approach through taking no account of crime quantity or replacing labor-correction system with criminal penalty.This paper argues that the construction of misdemeanor system can be approached through systematic transformation on the basis of existing resources of criminal law,which is not equivalent to the expansion of crime and does not rule out the possibility of increasing types of crime in a rational and appropriate manner.Misdemeanor system recognizes the effectiveness of administrative punishment and public security management punishment.The factor of crime quantity,which is not abolished,should be directed to the orientation of criminal law.Misdemeanor system,which effectively regulates,instead of replacing,the labor-correction system that is filtered to certain limit,can be approached by constructing scientific and rational judicial procedures.This paper considers that the misdemeanor system reflects the rule of regulations,humanity and efficiency.In brief,the existence of misdemeanor is objective and the significance of misdemeanor system is practical.Chapter two,a comparative study of misdemeanor system.On account of the inheritance nature and interconnecting idea of legal system,the structural design of misdemeanor in criminal legislation of foreign countries can provide useful references for building China's criminal law system.As far as criminal substantial law is concerned,the penal code of France takes the lead in setting up the principle,which is still followed in current days,of dividing crimes into three types-felony,misdemeanor and police offense.Misdemeanor system of domestic characteristics can also be found in Germany,Italy,Russia,the United States and other countries.The standard of statutory penalty is the main criterion for separating misdemeanor from felony.In Germany,the boundary is one-year minimum statutory penalty.But the criterion of maximum statutory penalty is more generally applied.For example,in France the boundary for misdemeanor and felony is ten-year imprisonment of maximum statutory penalty,and the boundary for police offense is three-thousand-EUR fine.Besides the difference of prison terms,there is also matching system of mitigative penalty for misdemeanor.In accordance with provisions of misdemeanor in criminal substantial law,there are special legal procedures regulated in criminal procedural law.In criminal lawsuit there is general practice of summary procedure which balances the efficiency and fair-value of misdemeanor cases.In Germany,Italy and Japan,the criminal-penalty procedure,which is conducted through examining written documents instead of court hearing,is set for the goal of shortening the lawsuit process.In France,Germany,Italy,and the United States,the guilty plea(or as criminal negotiation,plea bargaining),which allows procurator to guide the procedure,is set to stress the leniency of penalty after plead-guilty,lower pressure for investigation and ease burden of proof.Furthermore,there are some other lawsuit procedural institutions which can be defined as summary procedure in narrow sense for the court hearing is simplified in procedures.Through the comparative study of summary procedure institutions,of which the similarities and dissimilarities are analyzed,it can be deduced that summary procedure plays a vital role in lessening pressure of handling lawsuit cases.Chapter three,the practical study of misdemeanor system.The criminal policy of China,from a historical perspective,has been throughout the phases of “Combination of punishment and leniency”,“Crack down on crimes”,and “Justice tempered with mercy”,currently the fundamental policy focusing on the side of mercy which can help guide the specific policies and practice of misdemeanor.In legislation dimension,it is the entry for criminal law into a legislative-oriented era.The criminal law of 1997 mainly reflects the process of criminalization and the following passages of amendments of criminal law,which expand the circle of crimes,in a sense are innovations of criminal legislations for crimes of misdemeanor regulated at a centralized scale.For newly regulated crimes the law generally provides relatively less severe penalty,and for some of them the law provides less severe penalty in addition.The ninth amendment of criminal law,which provides typical misdemeanor such as crime of substitute-cheating in exams and crime of using false identity documents or stealing identity documents,highlighting the function of misdemeanor as regards regulating society.The expansion of amendments,in some extent,does and will do in the long run,covers some illegal acts regulated in labor-correction system of which the inappropriate expansion squeezes the space for due-existence of criminalization mechanismIn judicial dimension,the provisions of misdemeanor represented by criminalization of dangerous driving and expansion of stealing-crime have great influence on judicial practice.The crime of dangerous driving,marking the legislative model of crime of abstract-danger dressing the protection of rights and interests in advance,leads the trend for legislation of misdemeanor and its maximum statutory penalty of criminal detention provides reference for crimes such as crime of substitute-cheating in exams.Meanwhile,it causes cognitive shock of traditional criminal ethics,for the public views on crime of dangerous driving is distinct from views on natural crimes such as stealing,robbery and also many administrative crimes,reflecting the fading moral sense as regards standards of criminalization in risk-society.The expansion of stealing crimes,which increases the volume and its proportion in crimes,is one example of filling in the blanks of punishments after labor-correction system is abolished.It is also a reflection that the rationality,rather than the quantity,of scope of crimes determines the public support.In criminal procedural dimension,the specific practices of misdemeanor system include criminal lawsuit summary procedure,reform of standardization of measurement of penalty,criminal reconciliation procedure and institutions of relative non-prosecution and non-prosecution with attached conditions.Moreover,in recent years the pilot conductions of Criminal fast-trial procedure,which features more simplified process and shorter time-limit,balances protection of human rights and eases the tension between cases and workforce,as well as Lenient penalty of guilty-plea,a reform of stepping further towards the goal of completing litigation system and optimizing arrangement of judicial resources with phased results,should be noticed for they help with the involvement of misdemeanor cases in litigation reform and realization of fast settlement.Chapter Four,the practical difficulties of misdemeanor system.The existing decentralized misdemeanor system is faced with practical difficulties in many ways.Firstly,in legislative and judicial dimension,the heavy-penalty structure of criminal law in China leads to relatively heavy statutory penalty for misdemeanor,as noticeable negative impacts of expanding circle of crimes,even in practices of mitigative penalty.The widespread factors of crime quantity,as characteristic of criminal law in china,cause questions for the unsolved problem of ambiguity,the wide gap between ideality and reality of explicitness of defining boundaries,and the rigidity making crime-margin illegal acts regulated by labor-correction or other institutional designs.Moreover,it is difficult to clarify the definitions of administrative illegal-act and administrative crime for they are poorly connected in institutional-design and the judging process of misdemeanor is challenged with issues such as divergence of interpretation,flexibility of legislation of crime quantity,the controversy of criminalization of abstract-danger crime,and ambiguity of rule-application of Non-prescribed crimes.Violations of public security,as one special kind of administrative illegal act,are regulated,due to the roughness in legislation,in manners of overlapping and independence in contrast with crimes,causing difficulty for applying.The uniform set of administrative crimes in criminal code intensifies the tension between institutions of illegal-act and crime.And the desynchronized-adjustment in categorization leads to the impediments in connecting administrative law enforcement and criminal justice.Moreover,there exist the issues of difficulty in distinguishing natural misdemeanor and non-criminal act,clarifying the relations between provisions of public-security illegal-act and natural crime as well as the overly-large difference in crime quantity of crimes.Those issues lead to the inappropriate development from difference in choosing specific crime to difference between crime and non-crime,and the irrationality in mechanism of decriminalizing unfulfilled criminal act.In dimension of criminal litigation,the overly due procedure of misdemeanor cases leads to the waste of judicial resources and negative impacts on protecting human rights for those involved.Besides,it squeezes the reachable judicial resources for cases of great influence,difficulty and complexity,thus dragging the processing of reform of substantial court hearing.In dimension of criminal consequence,the crime-tagging phenomenon is prominent.In the cultural background of felony,the expansion of crime circle in criminal law comes with both advantages in punishing criminals for the cost of crime is high,and disadvantages in causing obstacles for future livelihood,education and employment due to criminal record,or even non-criminal records of criminal detainment,administrative detainment and bail.The provisions of employment-prohibition are excessively-broad and irrational,in contrast with the less-optimal implementation and effectiveness of penalties of fine,public surveillance,criminal detention,probation and community rectification.Chapter Five,systematic reconstruction of misdemeanor system.The defining standard for misdemeanor should be optimized by setting the boundary of statutory penalty of three-year imprisonment term.Crimes(including crimes with the lowest penalty grade)of three-year imprisonment term in maximum should be deemed as misdemeanor,distinguishing the rest as felony.The main function of misdemeanor system focuses on integrating existing provisions of crimes,which concludes the return of regulation under criminal law of statutory and natural crimes.However,it must be of adherence to the principles of protection of rights and interests,moderation and independence of criminal law in legislations of setting criminal types.It is worth exploration for establishing misdemeanor transition inspection system which prohibits the provision of felony in criminal code in cases of setting up a new crime except for special provisions by law.The criminal code shall be amended only if it is considered necessary to set up clause of felony after a certain transitional period by setting up or integration in misdemeanor law in the first place.For the optimization of scientism and rationality in legislative methodology,the dispersiveness of legislation is advocated by constructing a criminal law system composed of criminal code,misdemeanor law,specific regulation and subsidiary regulation.In that system the uniformity of criminal law is guaranteed by misdemeanor law.Regarding the discussion on abolishing the factor of crime quantity,the rational practice,in accordance with the construction of misdemeanor system,should be as follows: the judge,taking into account of facts of illegal act and systematic consideration of misdemeanor,compares the adaptability between act and punishment,considers the necessity of applying sanction rules set in misdemeanor law,and draws the conclusion of crime or non-crime.Moreover,it is of necessity to establish the system of punishment-exception for unfulfilled misdemeanor and to optimize the system of handling-only-upon-complaint for misdemeanor.It can be achieved that natural crime and statutory crime are effectively regulated through establishment of misdemeanor system.For the unimpeded coordination of administrative law enforcement and criminal justice,the procuratorate,on behalf of judicial authorities,is obliged to conduct a priority review of potential administrative-crime act to determine whether a crime is committed,thus preventing replacement of penalty with punishment.The system of public-security detainment should be reformed in a judicialization method by staffing public-security judges in decision-making process,whereas it rules out the necessity of criminalization of all the corresponding illegal acts.Provisions of crime,for the coordination with the law of punishment for public security and administration,shall be separated from illegal act in terms of both quality(with explicit differences in description)and quantity(with the same description but different degrees),in a way that rules out the possibility of application difficulty due to overlap or ambiguity.Moreover,in law of punishment for public security and administration it can provide catch-all clause for specific illegal act,preventing blank of punishment and providing reference for follow-up regulations of misdemeanor.The elimination of misdemeanor-record system should be established and its relation with system of industry-admittance should be handled in a dialectical manner.In accordance with misdemeanor system,the criminal consequences provided in criminal law should be modified to pursue reform of mitigative penalty and non-criminal punishment,through implementations of judicial treatment of resocialization,non-imprisonment correction and reform of fine penalty with reinforced measures of enforcement.The reform of misdemeanor litigation system should be carried out as suggested hereinafter: for effective integration of judicial resources,concentrate handling of misdemeanor cases in misdemeanor tribunal and dispatched tribunal and implement concentrated-review by prosecutors of cases with overlapping characteristics in range of administrative law enforcement and criminal justice;for the optimized system of investigation,arrest-review and prosecution-review,strengthen prosecutorial supervision on criminal-detainment,establish system of time-limited withdrawal of case,reform operational mechanism of arrest and set up procedural mechanism of pre-prosecution case-filtering;for completion of summary procedure of misdemeanor,establish system of fast-trial procedure and implement criminal punishment-order;for protection of lawful rights and interests of misdemeanor criminals,establish a system with full coverage of participation of lawyer.By studying the system of misdemeanor,this paper summarizes the characteristics of existing misdemeanor,clarifies the boundaries between crime and non-crime,explores the scope of appropriate punishments for crimes,grants mild treatment for misdemeanor,sets a summary procedure for misdemeanor,and enhances the role of criminal law in social governance.For good law and sound governance,criminal law can not and will not be absent.