Study On The System Of Probation

Modern probation system which originated from the Western Countries has been more than a hundred years and probation is endowed peculiar value which widely adopt by the other countries of the world. Meanwhile, with the trend of penalty development, probation system attaches the importance by the people. So, in this paper, the author summarized the types of the current criminal theory and probation system in the criminal justice, analyze those characteristics in the aspect of basic theory of the probation system, the comparative study of Chinese-foreign probation system, and so on.The paper is divided into four parts to summarize, analyze current criminal theory and probation system in the criminal justice and do some comparison and research from the fundamental theory of probation to Chinese-foreign probation system. According to that, the paper points out the main problems of our current probation. Besides, the paper comes up with some simple but bold ideas to improve our present probation system with the condition of our country.Part I: the basic theory of the probation system. This part illustrates several basic theoretical problems of probation system: historical evolution, theoretical foundation, concepts, characteristics, values and the legal characteristics of probation. In this section, the author discusses the theoretical principle of criminal sociology and criminal policy on which probation system relies through the aspects of its origin and historical evolution, and then describes the concepts and characteristics of probation system. In this paper, the importance of Probation System in the criminal justice has been emphasized, such as avoiding the deficiency of short-term free sentence, encouraging transformation of the criminals, benefiting to the re-socialization of criminals and serving the principle of economic penalties. in the terms of the argument about the legal nature of probation in the academic theory, the author consider that it is the result of probation explanations from the different angles. Specifically, the author in this paper takes the probation as a part of"penalty eliminating system theory". The probation is similar with amnesty penalty and differs in the aspect of parole system which belongs to the penalty executive systems.Part II: Comparative Study on Probation.In this section, the author has comparative study on probation law systems and judicial precedents from four parts, including the types of probation, the applicable conditions and supervision expedition, revocable conditions of South Korea, Denmark, Sweden, Germany, France, Russia, Britain, the United States and other countries. From the comparison among the types of probation, applicable conditions, supervision expedition and revocable conditions, the author sums up the differences and similarities of each country, then analyzes the advantages and then puts forward to the improvement of probation system in our country.Part III: problems in our probation system.the author has the empirical analysis on Chinese Criminal Law provisions of probation system through the experience of the probation legal provisions of other countries, which concludes the inadequate of five parts: Firstly, the monotonousness of probation. Chinese Criminal Law only has some regulations about suspending probations, but does not make any provision for suspension of declaration.Secondly, applied probation conditions too abstract."Relatively minor crimes, showing repentance, no danger of re-offending and no significant adverse effects on residential communities"are substance conditions of probation applying, while there is no available reference in the judicial practice for these regulations. In this condition, the discretion of the judge are needed in the terms of applying without any references which not only caused the difficulties in applying law but also provided the situations of arbitrariness and abusing of discretion in the practice. Thirdly, the regulations of Probation inspection are too abstract with many principles with little maneuverability and reference value. The rules of expedition Criminal Law only provide the content of "supervision "exclude the spirit of criminal reformation, self-reliance and any other improvements.Without Life skills training and mental health training, the aim to reform the criminals is hard to attain through complying with the provisions passively and mechanically. Fourthly, the irrational conditions of probation revocation.In one part, Criminal Law of the probation revocation in the terms of "newly committed crime "and"omitted crimes" are too strict which goes against the individualization principle without regarding to subjective malice and severity of crime. In the other part, the seriousness of the law and restraining order violating which caused probation revoke is hard to define. Fifthly, the deficiencies of community correction system. Knowledge deviation of community correction caused the small proportion of executed criminals and these criminals are hard to accept by society. moreover, the procedure of Community Corrections are based on the provisions of"The Notice"which only has rough regulations about divisions and the specific work that the police, prosecutors court in charge. In other aspects, the regulations about how to operate community correction system, to connect the stages and to confirm the jurisdiction are out of provisions which are harmful to the unification and regulation of procedural provisions.Part IV: The idea to improve the probation system. With the reference to legislation of foreign countries, the author constructs the points about probation system improvement with regards to provisions of Criminal Law. Firstly, improve Chinese probation type. Secondly, improve the application of probation. In this paper, the author consider that it is available to add the prediction of recidivism consulting to personality inventory of foreign countries and to add up the rule of"the situation of probation none available", such as the probation exception of recidivists. Thirdly, improve the contents of probation. The author takes the proposal that the legislation should be improved in the aspect of the obligations and other rules of probationers. Meanwhile, these regulations should embody the aim of punishment and the criminal reform principles.The restriction should be raised from the angles of Prohibition and commands provisions with regard to the characteristics of criminals.Fourthly, improve the revocation system of probation. In one aspect, the restrictions on the criminal qualitative analyses and crime penalty determination are necessary in the procedure of "newly committed crime "and"omitted crimes" revocation sentences.In the other aspect, More explains towards probation revocation and more practical rules in the operation make the regulations of probation investigation violating conditions available to operate.Fifthly, improve the system of community correction. The Supreme Court, Supreme Procuratorate, the Ministry of Public Security and Ministry of Justice jointly issued the"The Notice"which makes up legal basis of community correction. As a new type of penalty execution type in our country, the enlargement propaganda of community correction system is needed to help citizens gradually accept this newly born system. And also, in order to enlarge the sphere of application, the author takes the view that the rules of probation applying conditions should include regulations about the situation which criminals are sentence to detention or five years' imprisonment . Finally, through the establishment of some relevant procedural provisions, we remedy the shortage of probation community correction procedural system regulations in this notice and then establish a standard and unified procedure gradually.