Study On Law Application Of Sentence Commutation

This paper analyzes and discusses commutation system in penaltysystem in our country to improve and supplement defects and deficiencies ofthis important penalty system in legislation and judicature, harmonizerelation among conditions for commutation of sentence, target for applicationand procedures, make it more practicable and therefore bring it into full play.There are five chapters in this paper.The first chapter is introduction of commutation system. There are fourparts in this chapter. The first part is the definition of commutation ofsentence, expounding definition, characteristics, classification ofcommutation of sentence and its difference from other criminal system; thesecond part is history and legislative change of commutation of sentence andintroduces history of commutation system in our country and commutationsystem comparison between our country and western countries; the third partis about theories and legal foundation of setup of commutation system, that is,whether the foundation for determining according to commutation system isappropriate and whether it is appropriate for the country to have and applyright of commuting sentence. It proposes theoretical foundation forcommutation system setup with concept of social fairness and justice andconcept of social utility combined; scientific criminal policy is the legalfoundation for commutation system setup and commutation system setup isthe requirement of penalty purposes. Besides, it elaborates the theoreticalfoundation that commutation system setup is not against the principle thatcrime conforms to liability and penalty; the fourth part evaluates fivefunctions of commutation system in judicial practice of execution, that is,encouraging function, changing function, evaluating function, maintainingorder function and economic function.The second chapter is target for commuting sentence. There are twoparts in this chapter. The first part is about regulations of application ofcommutation of sentence in criminal law of our country; the second partfurther discusses the application of commutation of sentence for some specialtargets, including: first, commutation of sentence for criminals sentencedto death with a suspension of execution. Comment on and explain whethercommutation of sentence for criminals sentenced to death with a suspensionof execution belongs to the scope of commutation of sentence prescribed incriminal law in our country and put forward that the commutation forcriminals sentenced to death with a suspension of execution is commutationsystem under a special form; second, commutation of sentence for criminalswith suspension of execution. Focus on the controversy whether criminalswith suspension of execution shall be listed within targets for commutation ofsentence and proposes that it not only conforms to execution purposes butalso can achieve better execution effects to apply commutation of sentence tocriminals with suspension of execution; third, commutation of sentence forcriminals on probation. Considering the negative attitude to commutecriminals on probation by relevant judicial explanation, analyzes legalfoundation and practical needs for commuting criminals on probation; fourth,commutation of sentence for criminals of temporary execution of thesentence outside. It elaborates that to commute criminals of temporaryexecution of the sentence outside conforms to requirements of individual,educational and economic execution; and last, commutation of sentence forjuvenile delinquent. Focus on provisions and regulations on commutingcriminals who was underage when committing crimes by Supreme People'sCourt's judicial explanations and proposes specific suggestions formodification, that is, conditions for commuting criminals who is underagewhen serving a sentence shall be broadened appropriately.The third chapter is about conditions for commutation of sentence.There are four parts. The first part is about basic conditions for commutationof sentence. Respectively elucidate content, methods and scope of three basicelements, that is, repentance behavior, contribution behavior and greatcontribution behavior, in specific application of judicial practice, study andanalyze conflicts between commutation of sentence and appeal and methodof examination by scores in prison; the second part is about time conditionsof commutation of sentence. Analyze and expound theoretical foundation andlegal foundation for certain limitations of beginning and ending time ofcommutation and interval time setup; the third part is about conditions forrange of commutation of sentence, expounding difference of range ofcommutation among repentance behavior, contribution behavior and greatcontribution behavior and the connotation; the fourth part is about limitationsof commutation of sentence. It puts forward that the understanding of "actualexecuting period of sentence"shall be dealt differently according to propertyof different penalty categories, in other words, for criminal with life sentence,actual executing period of sentence shall not include days before thejudgment is made whereas criminals of other penalty categories includes daysbefore the judgment is made.The fourth chapter is about the procedures of application ofcommutation of sentence. There are three parts in this chapter. The first partis about commutation procedures prescribed by law. It introduces gradejurisdiction of executing institutions that propose suggestions to commutationof sentence according to laws in our country and people's court dealing withcommutation cases and operation of commutation cases including examiningcriminals, proposing commutation suggestions and making decision ofcommutation of sentence; the second part is about concurrent punishment forplural crimes, focusing on two situations involving concurrent punishmentfor plural crimes after commutation of sentence, that is, to discover that thecriminal has other crimes that have not been sentenced yet before the originaljudgment is declared after commutation and that the criminal commits newcrime during the period of executing penalty after commutation. It putsforward concrete solutions to the puzzle caused by above two situations injudicial practice; the third part is about repeal of commutation of sentence. Itmainly elaborates appropriateness and necessity to carry out right ofrepealing commutation and two methods of repealing inappropriatecommutation according to law.The fifth chapter is about legislative perfection of commutation system.In this chapter, the author proposes defects and deficiencies in commutationsystem of our country through judicial practice and experience accumulationin several years. There are four parts. The first part is about application ofcommutation for recidivist. It proposes that certain conditions shall be set upto limit commutation in time and range for recidivist; the second part is aboutthe application of commutation for criminals with property-oriented penalties.