The Study On The Application Of Criminal Reconciliation System In China

It is a period of prominent social contradictions and booming criminal cases in today's China, where the judicial circle has always been rethinking the malpractice of the conventional judicial notions. What is followed is a"restorative judicature"notion, originating from the west and aiming at trying to recover the destruction caused by crime, which is gradually introduced and accepted. Meantime, under today's circumstance of advocating socialist harmonious society and the direction of the"severity tempered with gentleness"policy of our country, and with the tendency of execution socialization and penalty alleviation, a new reconciliation mode has been promoted---- a model of"criminal reconciliation"that is a three-dimensional criminal procedure model with victim-centered and inflictor, victim and country-participated structure. Compared with the conventional criminal judicature, the criminal reconciliation is contributive to recovering the social relationship destroyed by crime and preserving the social order, and saves the cost of the inflictor as well as the victim and the judicial resource of our country. It is because the unique value of the criminal reconciliation that it is being popularized to the practice in different forms by the judicial authority of many provinces and municipalities of our country. However, it has not been legalized and systemized by our country. Therefore, combined with my own procuratorial work, I would like to provide some contributions for the perfection of our national criminal procedure legislation by discussing how to construct an eligible criminal reconciliation system for the procuratorate of our country and trying to decrease the risk through the system design of the application range, the application conditions and specific practice.This thesis is divided into three parts:Based on the judicial reality of our country and through the influence of western countries'criminal reconciliation system on China's criminal judicature, Part I introduces the basic starting point of this thesis----the criminal reconciliation is imperative under the circumstance in today's China but lacks legal guarantee.First, the thesis elucidates the influence of restorative judicature on the criminal judicature in China's reform from the tendency of western criminal reconciliation and the political system's outer-function of our country.Second, the thesis expounds on the process of the judicial practice and research of the criminal reconciliation during the introduction of this system.Part II analyzes the advantage of the application of the criminal reconciliation in China and the arising questions through summarizing the experience and lessons during our country's judicial practice.First, the thesis discusses the advantages in the application of the criminal reconciliation such as the fine psychological therapy effect, to help litigants strengthen their confidence towards judicature, to decrease the rate of recommitment, to improve the rate of acquiring the compensation, to save the judicial resources and to deliver traditional Chinese culture etc.Second, the questions met in the application are discussed, including the possible questions, such as the conflict of values, the conflict between the systems and the basic principles of the criminal law, the lack of the application process of the system in the criminal procedures, the embarrassing situation between the inflictor and the victim, the possible result of causing the new crimes.Through the comparison, the author finds that the advantage is over disadvantage in terms of the criminal reconciliation. Therefore, the conclusion is that a criminal reconciliation system applicable to China's situation is needed to realize the transform from"harmful justice"to"harmless justice".Part III is the major chapter of the thesis, which deals with the author's design of the construction of the applicable criminal reconciliation system for our country.First, starting from fostering the notion of correct criminal procedure, the thesis correct some one-sided or wrong ideas in practice, such as"criminal reconciliation equals commutation with money".Second, the legislative reform of the criminal reconciliation is discussed. Starting from the addition of the criminal reconciliation into legislation, an all-round argumentation and a design of the criminal reconciliation applicable to the procuratorate is followed, including its application principles, application range, application stages, the participants and application conditions.Third, this section is about the design of the criminal reconciliation procedure, which includes four stages, namely startup, preparation, application and processing, among which, the thesis compares, screens and proposes the points of view about the theoretically controversial problems, such as the intermediator, the application stage, the fulfillment of the reconciliation agreement and the procuratorate nonprosecution decision and further provide the feasibility proposal.Fourth, this section puts forward some related mating systems after designing the specific processes of the criminal reconciliation. According to the possible deficiencies of the specific systems, the thesis puts forward some mating systems, such as reconciliation guarantee, compensation standard and reconciliation revisit etc.