Study On The Supplementary Penalty With The Guide Of Criminal Policy Of Combining Punishment With Leniency

Supplementary penalty has four unique fuctions which are the fuction of preventing crime,fuction of supplementing principal punishment,fuction of preventing excessive punishment and fuction of realizing penal economy.Supplementary penaly is a necessary part of China's criminal penalty system.The study of supplementary penalty benefits the improvement of China's criminal penalty system.Criminal policy is the soul and core of criminal law.As a part of criminal law,supplementary penalty need to accept the guidance of criminal policy.The criminal policy of combining punishement with leniency is the basic criminal policy of our country.The establishment,application and enforcement of supplematry penalty must implement the basic requirements of the criminal policy of combining punishement with leniency.Efforts in two aspects can be made to realize the implementation of the criminal policy of combining punishement with leniency in supplementary penalty.First,the formulation,application and enforcement of specific supplementary penalty must conform to the basic requirements of the criminal policy of combining punishement with leniency.Second,the overall provision of supplementary penalty must be also conducive to the realization of the criminal policy of combining punishement with leniency.It is not easy to realizing the criminal policy of combining punishement with leniency in supplementary penalty.As far as the specific supplementary penalty is concerned,it is necessary to implement the criminal policy of combining punishement with leniency in the three aspects,legislation,justice and enforcement in the vertical direction.In the horizontal direction,it is necessary to implement the basic spirit of the criminal policy of combining punishement with leniency in terms of scope of application,application method and amount(penalty period)etc.Only part of the vertical and horizontal compliance with the requirements of the criminal policy of combining punishement with leniency does not really implement the criminal policy of combining punishement with leniency.Only when the vertical and horizontal aspects have all achieved the basic requirements of the criminal policy of combining punishement with leniency,can we truly implement the criminal policy of combining punishement with leniency.Therefore,it is necessary to conduct a comprehensive review of the specific supplementary penalty from the vertical and horizontal perspectives,figuring out where the criminal policy of combining punishement with leniency is violated.And then improve supplementary penalty with the guidance of the criminal policy of combining punishement with leniency.Implementation of the criminal policy of combining punishement with leniency in the whole supplementary penalty system depends to a large extent on the specific supplementary penalties.Advancing the implementation of the criminal policy of combining punishement with leniency in the whole supplementary penalty system requires further enriching the types of supplementary penalties.In addition to the introduction,this article has five chapters.The main contents of each chapter are as follows:The first chapter is "The Criminal Policy of Combining Punishement with Leniency and the Supplementary Penalty".The main purpose of this chapter is to establish the research perspective of this paper and to frame the research objects of this paper.This chapter is divided into three sections.The first section summarizes the concept of criminal policy,the concept of the criminal policy of combining punishement with leniency,the focus of the criminal policy of combining punishement with leniency,and the status of the criminal policy of combining punishement with leniency.It points out that the concept of "criminal policy" in the criminal policy of combining punishement with leniency is different from the criminal policy concept of Western countries.The second section sorts out the origin of the concept of supplementary penalty,the concept of supplementary penalty in China,and the types of supplementary penalty in some other Countries and China.At present,there are only three types of supplementary penalty which are fines,assets forfeiture and deprivation of political rights.The third section sorts out the relationship between the criminal policy of combining punishement with leniency and supplementary penalty.The relationship between the criminal policy of combining punishement with leniency and supplementary penalty can be divided into general relationship and special relationship.The relationship between the criminal policy of combining punishement with leniency and supplementary penalty follows the relationship between policy and law,the relationship between criminal policy and criminal law,and the relationship between criminal policy and criminal penalty.Supplemantary penalty has positive significance for the realization of all aspects(including the "Punishment" aspect,"Leniency" aspect and the banlance of these two aspects)of the criminal policy of combining punishement with leniency.The second chapter is "Criminal Fines under the Guidance of the Criminal Policy of Combining Punishement with Leniency".This chapter is divided into three sections.The first section sorts out the historical evolution of China's criminal fines.China's criminal fines originated from the "redemption" in the primitive society period,and later evolved through various stages such as slave society,feudal society,revolutionary war,early founding of China,1979 criminal law,and criminal law in 1997,after which the current regulation of criminal fines.The second section examines criminal fines in China from the perspective of the criminal policy of combining punishement with leniency,figuring out the problems.Criminal fines violates the the criminal policy of combining punishement with leniency in several aspects.As for the application methods of criminal fines,it should be lenient but actually is not,and it should not severe but actually is.As for the amount of criminal fines,the relationship between "leniency" and"punishement" is unbalanced.As for the enforcement of criminal fines,sometimes it should be lenient but actually is not,and sometimes it should be severe but actually is not.The third section put forward some improvement suggestions of cirmial fines in China under the guidance of the criminal policy of combining punishement with leniency.These suggestions include increasing the legislation of criminal fines as the only punishment for criminals,increasing the judicial application of criminal fines as the only punishment for criminals;reforming the regulation of criminal fines as a necessary punishment for ciminals into the regulation of criminal fines as a possible punishment for criminals;drawing on the experience of the United States to construct a standard of fines amount with universal applicability,flexibility and stability;Enriching severe fine enforcement measures and improve lenient fine enforcement measures in both sentencing and enforcement stages.The third chapter is "Assets Forfeiture under the Guidance of the Criminal Policy of Combining Punishement with Leniency".This chapter is divided into three sections.The first section sorts out the historical evolution of assets forfeiture in China.China's assets forfeiture has experienced the evolution of slavery society,feudal society,the revolutionary war period,the funding of China,the 1979 criminal law and the 1997 criminal law,and finally formed the current regulations.From a historical point of view,China's assets forfeiture has played a greater role in combating and preventing crime than fines.The second section examines assets forfeiture in China from the perspective of the criminal policy of combining punishement with leniency,figuring out the problems.Assets forfeiture violates the the criminal policy of combining punishement with leniency in several aspects.As for the application methods of assets forfeiture,it is severe on the surface but actually not and the relationship between "punishment" and"leniency" lost its balance.As for the scope of the assests forfeiture,the legislation is severe but the application is not.As for the sentencing of assets forfeiture,it is severe on the surface but actually not and the relationship between "punishment" and "leniency"lost its balance.The current concept of the relationship between criminal fines and assets forfeiture can result unbalance betwwen "punishment" and "leniency".The third section put forward some improvement suggestions of assets forfeiture in China under the guidance of the criminal policy of combining punishement with leniency.These suggestions include rational review of the relationship between assets forfeiture and crimial fines;reforming the regulation of assets forfeiture as a necessary punishment for ciminals into the regulation of allowing discretion in chosing between assets forfeiture and criminal fines;narrowing of the scope of assets forfeiture;and adopting "survey first,sentence next" procedure in assets forfeiture sentencing.The fourth chapter is "Deprivation of Political Rights under the Guidance of the Criminal Policy of Combining Punishement with Leniency".This chapter is divided into three sections.The first section sorts out the historical evolution of China's deprivation of political rights.The deprivation of political rights is a product of the development of democracy to a certain stage.China's deprivation of political rights has experienced a historical evolution from a mere punishment method to a dictatorship and a method of punishment to a punishment with political overtones.The second section examines the deprivation of political rights in China from the perspective of the criminal policy of combining punishement with leniency,and figuring out the problems.Deprivation of political rights violates the the criminal policy of combining punishement with leniency in several aspects.As for the scope of application of deprivation of political rights,the standards of "punishment and leniency" in different cases are different,and the relationship between "punishment" and "leniency" lost its balance.As for the period of deprivation of political rights,the standards of"punishment and leniency" in different cases are different,and the relationship between"punishment" and "leniency" lost its balance.As for the enforcement of deprivation of political rights,sometimes it should be severe but actually is.The third section put forward some improvement suggestions of deprivation of political rights in China under the guidance of the criminal policy of combining punishement with leniency.These suggestions include unifying the application scope of deprivation of political rights among criminals sentenced to penalty more severe than 10 years in prison;refining period of deprivation of political rights into five sentencing degrees;figuring out the enforcement priorities of depriving political rights,adopting more relaxed enforcment measures,establishing of guarantee systems and incentive mechanisms.The fifth chapter is "Expansion of the Types of Supplementary Penalty under theGuidance of Policy of Combining Punishement with Leniency".This chapter is divided into two sections.The first section discusses the necessity of the expansion of the types of supplementary penalty in China.Both the "punishment" and "leniency" aspects of the policy of combining punishement with leniency have raised the demand for further enriching the types of supplementary penalty in China.The second section gives a concrete idea of how to expand the types of supplementary penalty.It mainly includes clarifying the supplementary penalty status of some punishment measures without the name of supplementary penalty but actually functions as supplementary penalty in current Criminal law,mainly including deportation,occupational prohibition,and prohibition order;adding some new supplementary penalties mainly focusing on organization crimes,including assets forfeiture,deprivation of honorary title,restrictions on the scope of business;figuring out those deprivation of honor penalties which are meaningful to the enrichment of China's supplementary penalty system and reviving the supplementary penalty that existed in the history of our country,mainly refering to the deprivation of military ranks;Evaluating some supplementary penalties exsting in the history of China and current in other countries and figure out the value of thses supplementary penalties in enriching China's supplementary penalty system,which mainly refers to the deprivation of military political honor and deprivation of parental rights.