An Explorative Analysis On Non-Imprisonment System For Minors

Crime made by minors is a prominent problem faced by each country in the whole world. It has become a common understanding to adopt judicial protection measure of light penalty and non-penalty. Non-imprisonment system for minors in many developed countries has been improved into perfection, while the one in our country is still in the developing stage. It is necessary to make some research on the subject to make it improved continuously, exert its important function on preventing, educating and correcting crimes by minors. Based on the evolution, development, kinds of non-imprisonment system in and outside our country, this article has discussed the application of non-imprisonment system for minors in our country and its existing problem connecting with the present condition and reason of crimes made by minors, then it will explain the conception of further establishing and improving non-imprisonment system in our country based on borrowing foreign experience and domestic practice.Part-1 is about relevant problems of non-imprisonment system. First, it has made an overview to non-imprisonment. The origin of non-imprisonment has been explored. After comparing the appearance and usage condition of non-imprisonment in and outside our country, the concept of non-imprisonment in our country has been limited. It has concluded types of non-imprisonment in the stipulations of some countries and our Criminal Law. Non-imprisonment penalty has characteristics as: non-imprisonment nature, diversity of the penalty to be made, applicable to special criminals, with light penalty and humanism. Second, it has traced the development and evolution of non-imprisonment. The development of non-imprisonment has experienced three stages as: ancient society mainly based on corporal punishment and life punishment, stage taking imprisonment as the core after 19th century and transitional stage to non-imprisonment in the 1970s. Third, the research has compared non-imprisonment system for minors in some typical countries as Germany, Australia, America and Britain. Finally, it has stressed non-imprisonment system for minors and the applicable present condition. By opinion comparison, the author thinks that except the law has a stipulation on political rights should be deprived additionally in our country; minors with crimes should not be deprived of their political rights in addition connecting with the understanding and analysis on judicial practice. There should be rigid restriction on the application of property penalty of minors. Property penalty amount and its execution should consider the fact of minors, adopting protection measures of reducing, relieving and executing suspension temporally according to the law. The control penalty is mainly applicable to minors having reached 16 years old but not reached 18 years old when making a crime, and only applicable to those criminals with small danger and without necessity to be imprisoned and with better family guarding and social education. The application of probation should be with three necessary conditions as stipulated in clause 1, article 16 of Some Explanations by the highest people's court. Once had, they must be applicable. Conditions stipulate4d in article 2 is alternative. Once one condition is met, it will become applicable. Connecting applicable conditions of non-imprisonment for minors by judicial practice, the author thinks that the proportion of application on non-imprisonment for minors is not high at present.Part-2 indicates the defects of non-imprisonment for minors in our country at present. It has made its discussion on imperfection of legal system, lack of social resources and imbalance of application of non-imprisonment for minors. By listing special law relevant to minors abroad and international common divisor, guide line and stipulations on the protection of minors, this article has further indicated that the present penalty system in our country is mainly set up based on crimes by adults, while non-imprisonment system for minors lack independent, scientific and systematic stipulations. Factors as special authority and family don't supervise minors to designated position and law stipulation is not clear on reliability have restricted and influenced actual effects of non-imprisonment application for minors, and have also enlarged obstruction of non-imprisonment application for minors. Besides, bad conditions of minor supervision, disagreement of penalty yardstick by the court, judge and differences of judicial level have caused lack of application of non-imprisonment for minors. Part-3 has made a comparison on imprisonment and non-imprisonment penalty applicable to minors. From that we could get that it is more penalty suitable to adopt non-imprisonment penalty on minors, which is good for minors to reform and return back to society, prevent them from making crimes again. It could effectively utilize social resources to join in the advantages of educating and correcting minor criminals. Executing non-imprisonment penalty on minors is to implement the guideline of educating, moving and saving and principles based on education with punishment as assistance. It is a kind of demand to supervise and correct minor criminals, and the demand to implement international common divisor and realize international promise. It is also the demand to avoid intersectional infection and overcome short term bad results of penalty. Therefore, it is requested to implement non-imprisonment penalty on the minor criminals. Based on establishing the above point of view, it has also indicated principles and conditions to be well mastered when applying concretely. That is complete investigation principle, consistent principle between legal effects and social effects. Apply principle of non-imprisonment penalty according to the stipulations rigidly. Applicable conditions include: according to conditions stipulated in clause 1, article 72 in our Criminal Law, probation could be applicable based on initial crime, occasional crime and crime plot and contrition performance, thus the society will not be harmed again by them. Minors are accessories and corresponding criminals in the following ship in crime. Non-imprisonment could be used when the victim has been compensated or the minor criminals have been forgiven by the victim. When supervision and possessed, non-imprisonment penalty could be used.Part-4 has made some foreseeable thinking and provided some conceptions on the non-imprisonment penalty system on minors through renewing judicial concept, establishing legal system and improve concrete judicial system. First, we must recognize that applying non-imprisonment penalty on minors is a necessary choice to show humanism and humanitarianism, better protect social orders and prevent crimes. Meanwhile, applying non-imprisonment penalty on minors should insist principles of adaptation between crimes and penalty, tolerant punishment and penalty to be individualized. In establishing legal system of minors, the author thinks that independent youth legal system should be established, organizational system of youth criminal judicature should be reinforced, execution system of non-imprisonment penalty should be improved and guarantee system of youth criminal judicature should be also improved. On the aspect of improving youth judicial system, connecting with present judicial practice, the author thinks that social investigation system; criminal stain elimination system, lawsuit postponement system and judgment postponement system should be established and improved. Some of these systems have not been explored in our country, some of them with practice already been made have been stopped because of no legal base and some have achieved better results and then have been promoted.