A Rethinking On How To Improve The Probation System In China

In this thesis, the author first gives a detailed explanation on the concept of the probation system and the related theories, then analyses and summarizes the basis of this system in particular, while at the same time gives a profound thinking and demonstration of the various problems arising in the judicatory theory and practice. In the last part, the author provides some constructive suggestions on how to improve the probation system in China. In general, the author is actively for the application enlargement of this system so as to alleviate and socialize penalty. This thesis is divided into four chapters.Chapter I retrospects the history and characteristics of probation system in China and many Western countries, makes a comparison of them and concludes the developing and reforming trend in these countries, which could be summarized as the following three aspects. First, the diversity in form. This could enrich the content of probation system, improve its adaptability, and provides more room for a judge to decide the penalty. Second, the broadening of applying condition, which indicates the alleviation of punishment Third, the punishing feature of probation testing. Many countries have adopted or enforced the supervision system of probation testing, set up specific probation testing measures meant to punish the criminal, thus strengthening the punishing function of probation system.Chapter II proves that the probation system is reasonable from six different angles: right original opinion, criminology principle, teleology in penalty, lightened criminal policy, and social culture.Chapter III points out the errors of probation system or in its practice in China as the following five kinds. First, the probation system is not only a favor from law or the judge but also the defendant's legal right. Second, the default of procedure condition will definitely result in an abuse of probation. Third, the society or the people rarely participate in this issue, which would influence the punishing effect. Fourth, a rethinking on the essential elements of probation is still needed. Fifth, the supervision of probation system has no rule to follow due to the lack of a systematic examine criterion. These errors had hindered the application of probation system substantially.Although the new Criminal Law has improved the probation system in a certain degree, it is far from enough, because the primary obstacle has close connection with the system. Therefore, Chapter IV proposes several suggestions on how to improve the probation system so as to make the most of it and its application in China. The suggestions include: first, apply the probation to recidivism with additional condition; second, broaden the scope of probation type; third, discussion on fine penalty in probation; fourth, improve juvenile probation system; fifth, set up a hearing procedure; sixth, improve the probation examine system.