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On The Application And Legislative Improvement Of The Requirements Of Ordinary Probation In Mainland China

Posted on:2004-08-03Degree:MasterType:Thesis
Country:ChinaCandidate:H C CengFull Text:PDF
GTID:2156360122970157Subject:Law
Abstract/Summary:PDF Full Text Request
In Penal code 1997, the requirements of application of ordinary probation have been revised. The requirements of application of ordinary probation include the positive and negative requirements. The former refer to requirements on the severity of the punishment for the offender and the requirements on the traits of the offender that can demonstrate his sincere repentance and his determination to start his life afresh. The latter refer to the requirements on the traits manifesting the offender's reluctance to repentance so that he should not possess. From these two aspects have therequirements defined the essential requirement-the traitsof the offender that manifest his sincere repentance, i.e., no longer jeopardizing the society. The judgment of "certainly no longer jeopardizing the society" made by the judge should be a rational judgment, an inductive conclusion, based on the circumstances of the crime and the offender's manifestation of his repentance, instead of a subjective assumption, that is, such a judgment should approximate the objectively right decision. The ordinary probation is not only applicable to natural person but also applicable to units. Probation for unit has been well grounded in jurisprudence. The three principles of penal code imply the concept of probation for unit, and article 72 of our Penal code 1997 entails the application of probation for unit. The discretion of probation for unit should also be based on the circumstances of crime and its manifestation of repentance instead of being based on the performance of persons responsible for the crime.Considering the reality both in judicature and legislationof the probation system, the hearing procedures for the application of ordinary probation, which can give rise to justice and become the incarnation of justice, should be adopted as the procedural requirement for the application of ordinary probation. The adoption of hearing procedures can facilitate the investigation of the circumstances of the offender's crime and his manifestation of repentance, the overcoming of the demerit that the court enjoy exclusively the right of decision-making, the proper discretion of probation, the inspection and remoulding of the offender, and at the same time, the hearing procedure for probation is feasible, invigorating the probation system and providing a new means for the execution of fine. Applying probation into fine will extend the ambit of the application of probation and eventually establish a probation system for fine. Moreover, this system is necessary and possible. The combination of the penalty of fine and the system of probation is out of the demand both from the penalty of fine and the system of probation, for this combination could make up for each other's deficiency.
Keywords/Search Tags:the requirements of ordinary probation, application, legislative improvement
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