Research On Rights Restoration System In Criminal Law

As the most coercive "public instrument" of governance in peacetime,the proper and effective exercise of penal power is a key to national prosperity and social stability.Since criminal law is based on personal responsibility,the entire criminal law mechanism should not just focus on execution and serve sentences,but also actively connect with social law to meet the basic needs of individuals who are about to be released from their sentences and to reintegrate into society.At present,placement and re-education work of ex-offenders is not only a "short board" that should be filled by criminal law,but also an institutional requirement that should be clarified by social law.In promoting the modernization of the national governance system and improving the national governance capacity,it is important to pay attention to the fate of every member of society,including those who have committed crimes.To clarify the logical connection between deprivation of rights and restoration of rights,and to implement the protection of individual rights,cannot be emphasized enough.In modern society,everyone enjoys the dividends of national and social development,however,it is difficult for ordinary people to divert their attention from ex-criminals' past harmful history.In the fear of being victimized again,people usually put a permanent label of‘criminal' on those who had been convicted of crimes.It is particularly evident that people would exclude ex-offenders from society in pursuit of their high demand of maintaining public safety,and interests and order,via public power enforcement,which might lead to ex-offenders' need for right restoration being completely ignored.Therefore,to achieve the goal of protecting human rights,we need to research the obstacles faced by people who had been stripped of rights upon releasing to and transitioning into society.To help such people truly live a normal life,we cannot simply stopped at limitation and extermination of criminal record.One's awareness and ability to exercise rights is the key to determine the state of his or her enjoyment of social rights.It is not difficult to define one's rights in an abstract way.The true difficulty lies in restoring their awareness and ability to exercise their rights.This is particularly difficult for ones who had been removed from public activities and normal social life.Moreover,with limited social resources,it is unavoidable to see conflict between ex-offenders and others from time to time.When situation as such arises,ex-offenders are usually found at a disadvantaged position.Thus,the goal of this paper is to research the criminal restoration system for people who had lost their rights.A systematic study of the obstacles faced by these people during the right restoration process is conducted in this paper.This article is composed of seven chapters with around 210,000 words.In the first chapter,the background and foundation of the research on the main theme of the article are clarified.First,with an eye on the legislative trend in the region,while giving the background of the discussion on right restoration,we argue that the operation of criminal law mechanisms should shift from a focus on the prognosis of crime to the prognosis of punishment.Secondly,by retracing the basic meaning of civil rights,we clarify the content of individual restoration rights,the internal structure of rights,and the specific duties and obligations that the state and society should perform in promoting rights restoration.Thirdly,the concept of criminal restoration of rights is laid out on the basis of distinguishing right-loss due to different legal reasons and levels.Criminal restoration refers to the institutional activity of confirming that a person who has been discharged from a sentence has the same rights and qualifications as an ordinary person,which includes the special obligation of the authorities responsible for the resettlement of the disenfranchised person and the local government to foster the awareness and ability to exercise their rights,and others not to impede the exercise of their rights.Finally,we briefly compare and analyze the concepts of right restoration,ex-conviction eradication,and criminal record sealing,confirming their commonality in terms of purpose,namely,to achieve re-socialization of offenders,and pointing out their institutional differences.The effect of sealing criminal While extermination of criminal records stresses on disenfranchised persons possess same rights as ordinary people,the right restoration also emphasizes on active fostering of the awareness and ability of individual rights,which better reflects the rights-based character of the law.The second chapter focuses on clearly identifying practical obstacles confronted by people who had been deprived of rights upon releasing to society to become "social beings".Firstly,we summarize the social image of the offenders in the state of disenfranchisement,and then explain the significance of re-enfranchisement for their integration into normal life of the community,while emphasizing that,among the many released prisoners,those who have been deprived of freedom and political rights have the most urgent needs and difficulties for the restoration of social rights,so as to facilitate the subsequent discussion of the steps for reinstatement of these two categories of subjects.Secondly,we analyze the scope of the application of penalties under the ideology of heavy-handedness,and reveal the shortcomings of the relevant framework and policies,focusing on two administrative dispositions,political investigation and driving bans.We also look at the groups that continue to be neglected in right restoration and most likely to be socially excluded,and point out the reasons for their difficulties in re-socialization using ex-prisoners as representatives.Lastly,we summarize the difficult journey of individuals from disenfranchisement to re-enfranchisement,mainly by looking at the "tail" of disenfranchisement left by the established norms,and explain the necessity of active reinstatement for special groups.In the third chapter,the value basis and legal theory of right restoration is clarified by the keywords of equality,need,responsibility and coexistence.Firstly,equality is based on the value choice of "natural law" and it is in line with the morals and ethics that ordinary people possess,and we elaborates further the deep ideological implications of "equality" in the process of advancing national governance system and enhancing national governance capabilities.Secondly,the discussion of rights is directed to the basic needs of individuals,explaining that needs are the endogenous driving force of individual survival and development,and that we should face the problem and respond to certain groups' needs for right restoration.Thirdly,following the principle of liability-based punishment,once a prosecuted person gets discharged from legal consequences,upon completion of his sentence,his "criminal debt is fulfilled" and his status as a free citizen should be restored.Finally,from the perspective of social coexistence,the dialectical link between the restoration of the rights of special groups and the equal protection of the rights of others is thoroughly explained,and the resonant relationship between the protection of individual rights and the maintenance of basic social security is analyzed.The forth chapter analyzes the structural framework of the Chinese-style right restoration as a whole.First,the right restoration system in China shares some common attributes with other countries'.Backed by the basic conclusion that the law is rights-based,from the Constitution down to family law,the main content and structure of the protection system are the recognition of civil rights.Thus,the restoration of ex-prisoners' rights must use all legal power.However,since China adopts a dual system of disenfranchisement that includes criminal law and administrative law,for the released prisoners,as a party that has been stripped of rights with extremely weak self-governance in the community,our government should assume more obligations to restore their social rights,compared to other social subjects.Secondly,we compare and analyze the operation of the legal mechanisms used by foreign countries for right restoration,including each one's advantages and disadvantages:extermination of criminal records,extermination of qualifications,and concealment of criminal records;Thirdly,based on the existing legal framework in the mainland,we look at the boundaries of the right restoration from the perspective of the obligation to report prior convictions,and propose the significance of building a restoration model in China,and point out that no matter how thorough and complete the provisions on eradication of criminal convictions are,the connotation of the restoration system cannot be fully covered.On the contrary,by proposing the goal-oriented approach of right restoration,we not only further reduce the scope of ex-conviction reporting,but also keep the restoration system itself open in content,i.e.,the expansion of rights protection.In Chapter five,we systematically argue the steps of right restoration using provision details corresponding to dissolution of the qualification penalty.Firstly,the contents of qualification penalty are reorganized,and in response to the over-expansion of deprivation of political rights in judicial application,we propose the idea of necessary limitation of its penal content and application objects: for example,except for the right to vote,the right to be elected,and the right to hold positions in state agencies,other content shall not be included in the scope of this deprivation;another example is,deprivation of political rights shall be strictly limited to crimes endangering national security.Secondly,the justification of "returning to one's old profession" is explored from the perspective of the rehabilitation needs of those who have been released.For adults who have regained their ordinary citizenship status,the fundamental requirements for their reintegration into normal social life is to have a stable source of income and a place to live;apart from engaging in public activities,returning to their old profession is often the first choice as a job seeker.It may not be reasonable to prohibit these people from entering employment opportunities.Finally,regarding to the time limit and life-long ban on driving,we illustrate the importance of this qualification for ordinary people to maintain a normal life.Relatively speaking,depriving them of driving qualifications indefinitely will result in security sanctions that are far greater than the strength of criminal penalties.Chapter six,the process of right restoration is discussed using provision details corresponding to deprivation and restriction of freedom.First,prisoners,whose ability to exercise their rights is obviously restricted due to the deprivation of personal freedom,are subject to greater social resistance to their reinstatement,and their own ability to exercise their rights is relatively low;therefore,restoring their awareness and ability to return to social life must be carried out in an orderly manner in the later stages of execution;the guilty status may be the main reason for their rejection by the surrounding people in the community.Secondly,in conjunction with the known drawbacks of sentencing,we should provide social skills training for inmates to eliminate the negative effects of long-term imprisonment on their personality.We should also offer job training to the offenders to help them become self-reliance upon returning to society.Thirdly,necessary guidance should be provided to protect and raise ex-prisoners' awareness of rights.When they become homeless or jobless when re-enter the society,there should be available social network support to assist them,such as,set up a "halfway house" for a period of one to three months.In Chapter seven,we address the process of right restoration targeting young criminals.Given that the concept of juvenile justice has gained universal support and recognition,juvenile offenders(including offenders in transition to adulthood)are our main targets in this chapter.This can not only reduce the possible operational resistance that may occur in practice,but also,along with the gradual maturity of the system,the acquired experience is more likely to guide decision makers,administrators,and the public to gradually recognize and accept the relationship between the loss of rights and the restoration of rights,the interrelationship between restoration of rights and social coexistence,and to extend the system's tentacles to the field of adult justice in a subtle way.First of all,we clarify the criteria and draw the boundary of right restoration.By issuing judicial interpretations,promulgating local legislation and administrative regulations,and jointly formulating regulatory documents by government functional departments,we can clarify the subjects of enforcement and supervision,tighten enforcement procedures,and hold relative stakeholders to accountability.This will facilitate the transformation of the entire crime prevention mechanism from prognosis of crime to the prognosis of punishment.Second,it is to mitigate the possible negative impact of minor offenders for fulfilling the obligation to report their previous convictions.For example,for offenders in the transition period to adulthood,extended protection measures should be considered.For offenders that has reached the age of sixteen and has been sentenced to less than ten years of imprisonment for a crime of negligence,excessive defense,or a victimless crime,the criminal record sealing authority should be more prudent in responding to inquiries.The principle should be not to provide proof of guilt,and the opposite should be on an exception basis.Finally,in order to implement the concept of juvenile justice,all matters related to the loss and restoration of rights of juvenile offenders should be handled solely by the juvenile court.