The Lenient Criminal Policy And Its Application Into The Criminal Prosecution

For such a long period, under the influence of class struggle and the plan orientated economy, our country chose one kind of stern criminal policy based on harsh punishment. As time goes by, accompanied by the policy of reform and opening up, especially the setting up of socialist market oriented economy, there has been some subtle changes happened in our criminal policy in order to cope with the social reform and high criminal rate. In other words, harsh punishment has been unwelcome in our country, which was replaced by the combination of punishment and prevention. When we put the criminal policy combined with strictness and lenience into practice, the focus is how we can express the ideology of lenience. That is to say how we should construct the scientific lenient punishment policy system and fulfill such an idea.The so-called lenient criminal policy can be interpreted as the judiciary uses the criminal policy combined with strictness and lenience to punish the first time criminals, the occasional criminals and the juveniles generously. To a large extent, those people are not so vicious subjectively and the crimes they committed are not so harsh. The principal treatment we should adopt to fight against such offenders is not harsh punishment, but education and other non-punishing measures.The lenient criminal policy is closely connected with the development of our society, with the social and economic reform in our country, which should be regarded as a huge progress in the practice and knowledge of the Chinese criminal policy.The judicial procedure in our country consists of the following three parts: the investigation, the prosecution and the criminal trial. The author argues that we should use lenient criminal policy in the prosecution procedure, which means we should treat those criminal suspects, not so vicious subjectively, generously and not totally come to punishment, but should highlight the effect of education, reformatory education and resection. Owing to the important status played by the prosecution in the whole trail process, the criminal policy is very decisive in our thinking, which can help to resolve the social tit for tat, improve the judicial circumstance and promote the social harmony. And the policy we fall back on will be good to allocate the reasonable judicial resources and increases the litigation efficiency.We can find lots of related evidences about the lenient criminal policy. Besides the instructions made by leaders both from the highest level and the highest supervisory office, there are many regulations and opinions issued by the presentational office. Also we can find relevant regulations in the criminal law and other laws in our country, which includes the lenient treatment for juveniles and physically disabled offenders. Those practices mentioned above offer valuable practice for the fulfillment of lenient criminal policy. Presently, we can find related legal trial in Beijing City, Heibei Province, Jilin and other provinces.The lenient criminal policy can be decomposed into the following five parts: the application of non-prosecution in consideration of specific circumstances, put those offenders non-prosecuted into community correction, treat the criminal compromise seriously, handle properly the criminal policy for juveniles and the procedure consideration about the application of lenient criminal policy. The so-called non-prosecution in consideration of specific circumstances can be understood as the prosecution choose not to charge those offenders who satisfy the constitution of crimes but don't need use criminal punishment to fight against. In such circumstances, the prosecution can determine whether charge or not.The criminal policy of non-prosecution in consideration of specific circumstances is limited in its application. Under the criminal law and related regulations, there are four kinds of circumstances, i.e., can choose not to prosecute; can or should not punish; choose not to prosecute when the prosecution facing the possibility of choosing between prosecuting or not. Specifically speaking, when the procuratorial organ faces the situation of arresting or not, it should choose not arrest.The problems non-prosecution in consideration of specific circumstances face in legal practice is firstly, whether the prosecution has the right to commit economic punishment, and whether the prosecution has the right to ask for rightful punishment, which has been adopted successfully by some countries and the author puts forward that our country should borrow the valuable lessons.The author contends that those offenders should accept necessary disciplines, though they are not punished under the criminal law and the most effective way to correct them is community service. Community service is generally applied to those who are not vicious and haven't caused severe social damages. In other circumstances, those offenders who are pregnant, badly ill or have other physical defects can also be put into community service.The so-called criminal compromise is about those cases in which the offenders acknowledge their harmful deeds, want to pay the damages and accept the forgiveness of the damaged, which is called restitution model. According to the foreign theories, the restitution model combines the interests both of the offenders and the damaged. In recent years, our criminal law system borrows a lot from western legal system and from the continental legal system. Among those lessons, there are some ideas very close to criminal compromise, such as the civil legal system affiliated to criminal procedure; the damaged can take part in the litigation and some other masseuses.Coupled with environment pollution and drug problem, the juvenile delinquency is regarded as the third public disaster. So we should pay close attention to the social policy for the juvenile. The emergency is firstly to set up an independent criminal law system for the juvenile, secondly is to explore the causation for the crimes committed by the juvenile, thirdly, we should train some professional prosecutors to handle this kind of cases, finally, we should take some masseuses to make sure all our efforts have been put into practice.The author argues that what is put forward above needs protection from the procedure law. Nowadays our country has made some efforts in that area, which can increase the litigation efficiency, save the limited judicial resources and protect the interests of the accused.Conclusion: Presently, we should pay close attention to the focus changing to the lenience direction happened in our criminal policy. We should admit that the criminal policy's changing is a big event connected with our criminal ideology, which need the efforts made by the theory circle, the legislature and the judicial. The author argues that the most needed amendment is to offer the prosecution the right to make compromise, freedom deciding right and set up related suspension prosecution system.