Research On Justification Of Our Country's Procedure Of Commutation And Parole

Commutation and parole system is an important part of the implementation phase of criminal proceedings. It plays an important role, which can encourage prisoners to transform positively, reintegrate successfully and maintain social stability. Whether in law or on the theoretical study of procedure of commutation and parole, the discussion is rare and nearly blank. According to the law, the court always hear and written in the commutation and parole case, the prosecution give up supervision actively or passively, prisoners and victims can't participate in the process, even they have not relief rights about their personal rights. It leads that the procedure of commutation and parole has a tendency to supervision of administrative procedures, and the procedure is opaque. On the theoretical study, compared to entities about commutation and parole with specialized research, the research about procedure is incidental. In recent years, practitioners have started to pilot the program about procedure of commutation and parole, and made some good results. However, there are some distinctive in the reform ideas leading to confusion on the procedure of commutation and parole. It is necessary to have a position on the nature of procedure of commutation and parole and the mode accurately. Judging from the abroad study, the perfect legislation and practical experience will help to improve China's procedure of commutation and parole, which can leads to the justified way. Therefore, this paper, referring to foreign legislation and combining with their actual situation, discussed the issue in detail. In addition to the introduction, this article is divided into four parts, more than 30000 words.The first part of this paper has a position on the nature of procedure of commutation and parole. In view of academia points the power to make decisions on commutation and parole and the nature of procedure of commutation and parole have a certain logic relationship. The author doesn't agree with this viewpoint and have a certain distinction. The part, based on the depth analysis on two viewpoints, which concludes that: our country's power to make decisions is still exercised by the courts, the procedure of commutation and parole is the special justice process.The second part of this paper discusses problems of status of legislation and judicial practice in our country's procedure of commutation and parole. Firstly, this paper from the brought stage, trail and verdict stage, the withdrawal phase to relief phase analysis on by on, followed by judicial practice in our country's current situation, pointing out some prominent issues that the courts play down the role, variety trial, the practical problems of the withdrawal on the commutation and the prosecution weakening supervision. The current situation describes that the procedure of commutation and parole has a tendency to supervision of administrative procedures. Finally, this paper analyzes the important reasons.The third part is that locates the mode of the procedure of commutation and parole. Judging to two views in the academic and theoretical circles, one view is transformation of the proceedings, and the other view is transformation of hearing and publicity mode. The author assesses the two viewpoints, and concludes: the procedure of commutation and parole should be selected as similar to the general trail proceedings, but not to be the mode of transformation of the proceedings completely.The fourth part is the key part of the paper, mainly for the reconstruction of justification of our country's procedure of commutation and parole. Based on the above conclusions of several parts——the power to make decisions of commutation and parole is still exercised by the court, which is the meaning of the law. It proposes specific measures according to some basic principles. The court should do the pre-trail preparation; prosecution authorities, prisoners, victims and so on should be involved in such proceedings; the courts under the specific conditions of the case, implement the triage trial system——the principle of trial, the combination of written hearing the case, which involved in analyzing of the role of institutions and individuals, and finally proposes the reform measures about the withdrawal and relief proceedings.