Studies On The Subject Of Execution Legal Relation And Remediation Of Offenders' Rights

With the development of economy and the progress of society in our country, the conception of law has been rooted in the hearts of people. People pay more attention to the guarantee and realization of human rights in the social life. Although criminals, as the special community of citizens, have particularity in their identifications, the guarantee of criminals'legal rights is not only one part of the guarantee of the rights of the whole nation, but also the symbol of the level of the guarantee of human rights. It makes the guarantee of criminals'human rights one of the focuses of international society. On the guarantee of criminals' human rights, we should take the studies of factors in prison execution legal relation as starting point, the protection of criminals'legal rights as objectives, deeply understand the essential characters of the subject of execution legal relation, conclude the advanced system and excellent ideas of guarantee of criminals'rights in modern society, discuss the effective means of the guarantee of criminals'rights and strive to build a scientific and perfect the guarantee system of criminals'rights, which is suitable for the essential characters of prison.With the direction of modern execution concept, the execution concept that considers criminals as the object of execution legal relation should be animadverted. We should define criminals' subjective status. Although the criminals have been punished, their citizenship has not been deprived. Therefore they still take the rights and obligations regulated by constitution and laws. Criminals and prison authorities are two relatively subjects in the execution legal relation.According to the present legal regulations and modern concept of rule by law, the two subjects in the execution legal relation are not in the simple relation that one party manages and control the other one depending on its authority. Besides prisons have the right of execution according to laws, both prisons and criminals have rights as well as obligations. That is both of them have the status of subject and exist as subjects of rights and obligations.We should take the idea of separation of powers as the theoretical basis. What can be defined is that prison is not judicial authority and not the national authority which has both judicial and administrative qualities either. The prison is called judicial organization which refers to the national administrative authority related with execution of penal jurisdiction and with the objectives of guarantee the realization of jurisdiction. The penal affair of prison in the process of penal execution is substantially a kind of administrative affair. Its essence of administrative authority can not be changed. Prison's right of execution is substantially the execution power instead of judicial power. Therefore, in the process of executing the law, prison should conform to the procedural justice of administration and be standardized by administrative laws. If in the process of serving a sentence, the criminals' legal rights are considered to be infringed, the criminal can put forward administrative reconsideration or litigation according to the supervision of administrative power.As mentioned above, criminals are one-side subject in the execution legal relation. They still enjoy extensive rights in the process of execution. In the execution of penalty in prison, scientific and civil execution and the guarantee of criminals' legal rights is the major symbol of rule of law in prison, as well as the urgent problem to be solued in prison execution of our country.First, under the long-term influence of the concept of strengthening substantive but making light of procedural laws, prison execution legal relation of our country has formed a kind of special power relationship. It eliminates the principle of reservation of law and deprives criminals of the means of application for remedial jurisdiction. Affected by this kind of concept of special power relationship, the principle of proportionality in administrative laws and the principle of need of compulsive measures have not been taken as the legally basic principles of penal execution laws. The concept of procedural justice in execution can not be followed. The approaches of remedies of criminals' rights are obstructed. Meanwhile, the execution of prison authority lack effective supervision. There is all the deviation from the modern concept of rule by law.Second, there are related law systems on the protection of criminals' rights in the process of penal execution in western developed country. After the system of capitalism was built in the 17th and 18th century, under the influence of capitalist enlightenment, the contemporary trend of thoughts of protection of human rights was shaped. Driven by this trend of thought, the reform of prison system came onto the stage. The core of prison reform was to promote the guarantee of criminals' rights. The reform has been developed and extended for several centuries, and now in some countries, the systematic, perfect and scientific system of guarantee of criminals' rights has been built. They widely think much of the just procedural protection of criminals' rights. The just procedures includes the principle of procedural justice carried out in the executing procedure of prison authority, as well as the internal and external right remedy made after criminals' rights have been infringed.Then, we should build the guarantee system of criminals' rights. It includes: firstly, in the execution of penalty in prison, the deprivation of criminals' right should conform to the principle of law reservation. Secondly, bringing in the theory of procedural justice and taking the system of openness, participation and challenge advocated by procedural justice and the requirement of the procedural justice of efficiency as the content and criterion, discussing the establishment of proper guarantee system of criminals' rights in our country on the approach of penal execution. Thirdly taking the feasibility of administrative reconsideration or litigation put forward by criminals, discussing the particular approaches and means of remedial jurisdiction when adopt internal remedy of criminals' rights after the rights have been infringed. Fourthly, we could introduce the external supervision system in the prison execution of western developed countries----supervising committee system; make reference of the penalty execution and juvenile protection committee, to discuss the external supervision authority in our country. If there are rights, there must be relief. If there is relief, there must be guarantee. At present in the process of penalty execution in our country, the subjective status of criminals'rights has been gradually confirmed by laws and focused on by the society. But the protection of criminals'rights still lack an improved system. The ideal guarantee system of criminals'rights should be a protection system of criminals'rights participated by criminals and in the charge of supervision authority, inspection organization and court dividing the work, emphasizing on different parts and cooperating with each other.