On Construction Of China's Criminal Reconciliation System

Since the 1970s the system and idea of criminal reconciliation has been diffused rapidly all over the world, giving birth to many practical modes. Now that the global communication among different law cultures has become more and more frequently, and the idea of building China to a harmonious society has been greatly emphasized, China's criminal scholars, legislative and judicatory fields start to attach more importance to criminal reconciliation system. The theory exploration and practical fulfillment of criminal reconciliation system have turned into one focus for criminal law sphere and judicatory organ in charge of practical work. The thesis consists of the following four chapters to expound the construction of China's criminal reconciliation system: Some basic theories of criminal reconciliation system, an analysis of the feasibility of criminal reconciliation system, some problems confronted by criminal reconciliation system and their theoretical analysis and a design conception of criminal reconciliation system.The thesis is composed of four chapters, thirty thousand Chinese characters in total.Chapter one is some basic theories of criminal reconciliation system. Criminal reconciliation refers to an agreement reached by criminal suspect, defendant, victim and his or her close relative or relatives of their free will, considering civil liability due to the crime including economic compensation and primary fact of the case. The following three aspects have laid a social foundation for the emergence of criminal reconciliation system: the plight faced by traditional criminal judicature theoretically and practically, the global expansion of the victim movement, and the rise of community rectification. Criminal reconciliation features three characteristics, i.e., restorativity, contractuality and interest balance. The objects to restore in criminal reconciliation include victim, inflicter, and broken social relation. Via reconciliation spiritual trauma suffered by the victim will be alleviated or eliminated and he or she will get compensation based on his or her economic loss; the inflicter will get a chance to correct his or her errors and makes a fresh start in the society; the broken social relation will become harmonious again. The contractuality of criminal reconciliation refers to an agreement reached by inflicter and victim on the basis of autonomy of their will and equal bilateral consultation, with regard to the primary fact of the case and the liability the inflicter should undertake. Interest balance of criminal reconciliation implies that criminal reconciliation shows solicitude for substantive rights and procedural rights of criminal suspect and defendant and victim's rights and interests as well. In a criminal reconciliation the bilateral parties hold the equal status, and their rights and interests shall be regarded and protected equally. Upon reconciliation the bilateral parties feel satisfied to some extent, accordingly, to maximize their individual interests. Chapter two is an analysis of the feasibility of criminal reconciliationsystem. It is necessary to introduce criminal reconciliation system to China. First, introducing criminal reconciliation system is an inevitable result in order to reform traditional judicatory system and make up the lack of human care. Secondly, introducing criminal reconciliation system is an essential move in order to pay close attention to victim's rights and interests, ensure victim's rights. Thirdly, introducing criminal reconciliation system is a need in order to improve the harmony in the society on the people-oriented basis. Finally, introducing criminal reconciliation system is a need in order to cut down lawsuit cost and speed up lawsuit efficiency. China has been equipped with the following four facets to lay a foundation for the rationality of building up criminal reconciliation system theoretically and practically. First, the fulfillment of criminal reconciliation gets a thinking basis from harmonious thinking and harmonious society idea. Secondly, the fulfillment of criminal reconciliation gets a legal system basis from the provisions of China's criminal legislation in force. Thirdly, the fulfillment of criminal reconciliation gets a judicatory practice basis from the successful operation of slight wound case in a non-criminalization way and implementation and popularization of community rectification plan in China. Finally, the fulfillment of criminal reconciliation gets a policy basis from lenient-in and strict-out criminal policy.Chapter three is some problems confronted by criminal reconciliation system and their theoretical analysis. At present the main problem China faces in introducing criminal reconciliation system is a conflict theoretically between criminal reconciliation and nation's power of punishment, principle of a legally prescribed punishment for a specified crime, principle of compatibility of crime, responsibility and penalty, and principle—all people are equal before the law. Nation's power of punishment refers to nation's power to operate criminal punishment legally to people who have done delinquency based on rule power. However, offenders infringe not only commonweal but also individual benefits greatly. Hence, the traditional nation's power of punishment is facing a challenge in the present society. In this case, the existence of criminal reconciliation is scientific and rational. Principle of a legally prescribed punishment for a specified crime refers to the principle that if there is no provision proclaimed in writing in law, no crime shall be sentenced; if there is no provision proclaimed in writing in law, no punishment shall be implemented. The principle demonstrates a request for legal confirmativeness so as to oppose discretionary principle of crime and punishment and guarantee human rights. Therefore, principle of a legally prescribed punishment for a specified crime and criminal reconciliation system contain the same value orientation. Principle of compatibility of crime, responsibility and penalty refers to the principle that penalty degree shall match with crime committed by criminal and criminal liability borne by criminal. Crime degree and criminal liability proportion being weighed, criminal's objective social harmfulness shall be considered and actor's subjective evil and personal fatalness as well, forming a very important theoretical basis for criminal reconciliation system. Principle—all people are equal before the law—implies that any criminal is equal before law applicable. The principle's kernel is the equality of rights and that of legal status. Criminal reconciliation is reached out of bilateral free will. Inflicter and victim are equal on relation in contract so criminal reconciliation is not against the principle—all people are equal before the law.Chapter four is a design conception of criminal reconciliation system. Criminal reconciliation is applicable to slight criminal case involving definite and specific victim. Slight criminal case refers to the case that the criminal may be sentenced to less than three years'imprisonment or may be more than three years'imprisonment with a possibility of commutation and maybe be sentenced to less than three years'imprisonment after mitigation of penalty below the minimum statutory prescript. Criminal reconciliation is applicable to the following groups: impubes, criminals due to negligence, first offenders, casual offenders, accomplices under duress and so on—criminal suspects or defendants with slight subjective evil and a great possibility of being reformed. The application of criminal reconciliation involves subjective and objective conditions. The subjective condition is that inflicter makes a guilty defense out of two parties'free will. The objective condition is that criminal reconciliation shall take basically finding out case fact as a minimum request. Criminal reconciliation is applicable both in the phases of investigation and review and prosecution, and that of adjudication as well. In the phase of investigation public security organs shall be endowed with examination and disposal power on cases of private prosecution and reconciliation reached in slight criminal cases whose actors may be sentenced to less than imprisonment. In the phase of review and prosecution, criminal reconciliation shall be fulfilled through discretionary nol pros system and suspending prosecution system. In the phase of adjudication defendant will not be investigated under the law for criminal liability or defendant will be investigated for criminal liability but will receive lighter punishment by a reconciliation reached by the two parties of defendant and victim. Before the phases of investigation, review and prosecution and court trial, people's reconciliation commission shall be in charge of reconciliation. In court trial of the phase of adjudication, court shall act as mediator. Reconciliation term shall be appropriately extended to seven days. Reconciliation agreement shall be fulfilled on the day when the agreement is signed or shall be fulfilled step by step or in delay accordingly. Criminal reconciliation, an innovative mechanism for solution of criminal cases, faces many problems in its construction and needs being improved theoretically and practically.