Transplantation And Indigenization Of The Exchanged Criminal Penalty System

The exchanged criminal penalty system is a question that receives much dispute. The current criminal legislation holds denial attitude towards the exchanged criminal penalty system,but this system is playing an important role in judicial practice of many countries and regions. The author advocates transplanting the exchanged criminal penalty system on the basis of analyzing its historical base, theoretical foundation and realistic necessity. At the same time,the thesis puts forward to propose of the exercise of exchanged criminal penalty system. The author expects that more and more scholars can take part in the research of this field to perfect the system. The thesis is made up of three chapters.Chapterâ… is an explanation of concept, characteristic and theoretical classification of exchanged criminal penalty system. The author holds the view that the exchanged criminal penalty system existed in Penalty-Ransom System in ancient China and also in modern criminal law. Therefore there is solid historical foundation to transplant this system.Chapterâ…¡explains theoretical basis and practical significance of transplanting the exchanged criminal penalty system. The author thinks it is the objective request of pragmatic jurisprudence and purpose of punishment to transplant the system. Furthermore, it can avoid the malpractice of short-term punishment and safeguard the execution of fine punishment.In chapterâ…¢, the author first introduces the legislative model in foreign countries ,and then presents the following preliminary proposes from five aspects : firstly,the penalty system should be decided by people's court in order to apply the system effectively, especially for fine punishment. It can supervise and urge convict to pay the fine consciously and solve the problem of difficulties of execution. Secondly, fine punishment and public welfare labor can be provided for by law as to short-term punishment. For partial crimes, if the convict has harmed the society seriously enough to be sentenced above ten years, we may exchange part of his prison term to fine, so as to deprive the economic interest. The convict will never be commuted or paroled without paying the fine in order to enhance the two-sides prevention effect. Thirdly, the exchanged criminal penalty on fine should profit from the Aomen criminal code. That means providing short-term punishment and then deciding whether postpone the execution in order to replace by public welfare labor. If the corporation that commits a crime can't pay the fine penalty, it should be burdened on the direct responsible staff, that means responsibility body shift. Fourth, only when free punishment and fine punishment have been executed, the criminal punishment can be considered completion of enforcement. Fifth, the free punishment must be taken as a pressure measure to ensure the execution of exchanged criminal penalty.