| Under the harmonious linguistic environment of socialist harmonious society construction, the new type of criminal problem resolution mechanism----criminal composition system, concern for the victims'legal interests as the core of it, emphasizes defendants'quick return to society. This is in accordance with the Chinese traditional culture and the current ideal of social harmony, and means a great deal to the construction of harmonious society.Criminal Composition is a system which means that in criminal cases, specialized state organs will not affix offenders'criminal liability but remit punishments or impose on them lenient punishments after the composition between victims and them through offenders'confession and apology and other forms. It is an invention of the western criminal jurisprudence. The theoretical bases of the western criminal composition are retribution justice theory, the balance theory, and narrative theory. In our country, composition exists in a colorful environment of culture and historical tradition, and criminal composition contains four core aspects, which are peace, truth, justice, and humility and tolerance. Its value corresponds to the currently advocated theory of harmony.In our country, the same idea about how to establish procedures of criminal composition and build criminal composition system in accordance with China's reality has not been reached between the academic circles and practice fields. I believe that criminal composition should not be constructed merely within the frame of laws in existence, especially under the linguistic environment of the construction of socialist harmonious society which is proposed by our country. It must be developed into a series of rules and systems with Chinese characteristics. This is definitely a gradual proceeding process and can not be accomplished in an action. During the process of harmonious society construction, judicial organs should follow the mass line, bring people's power into play, make docking litigation and conciliation, examination-adjustment and conciliation, and community corrections go with each other, and make use of its feature of coming from and being rooted in the mass to establish a real criminal composition system with Chinese characteristics.Our country has been carrying out the penal system for a long time in which imprisonment is dominant. However, this type of penal system is greatly doubted for its lack of humanity concern. People's ideas about the value of criminal cases have developed into diversification from singularity in the multi-value society nowadays. Protection of criminals and victims'begins to be concerned. Criminals'return to society is advocated. At the same time, what is more important is that victims'rights and interests should be protected, their sufferings should be compensated, and the damaged social relations that broken by criminals should be repaired to build a peaceful, harmonious social environment. Socialist harmonious society is the one which is full of democratic legal operation, justice, honesty and love, vigor, stability and order, harmonious relations between human beings and nature. To construct a harmonious society is to restore damaged social relations broken by conflicts and crimes and thus application of criminal composition is true of the requirement. Criminal composition is fully concerned about victims and their needs, advocates victims and society's participation of jurisdiction, reconstructs the balance of interests of criminals, victims and society, repairs the damages brought by crimes, and remolds a harmonious society on the basis of the guarantee social safety.Criminal composition in our country is still in the exploration process, and has not become a normative system and practice. Through the exploration and practice of public security , procuratorial and judicial organs, criminal composition fits the new trend of trend of penalty mitigation policy, and its social effect comes to be good. However, its application proportion tends to be small, and legal organs do not have a unitive conception of its functions for composition because of the error of composition procedure and the lack of composition conditions. Criminal composition functions are not fully brought into play. Criminal composition broke through basic principles of the present criminal laws because of the lagging criminal legislation, which leads to much controversy and many different ideas. Some people mistakenly understand that criminal composition means private settlement by money, and some doubt that it means saving from penalty by money. Some legal organs operate criminal composition work by themselves, resulting in power extension among judicial personnel, which can easily breed judicial corruption if used improperly.I suggest that as a new criminal legal method, the mechanism and practice of criminal composition should be normalized by legislation in order to avoid applying laws in a different way around our country. And judicial corruption and abuse of judicial capacity will be avoided as long as procedure rules and legal supervision are strengthened. Criminal composition system in our country does not have to limit itself within the existing frame of law. It should be regarded as an important measure for construction of a harmonious society, and conform with courts'docking litigation and conciliation, procuratorates'examination-adjustment and conciliation, and community corrections to construct a people's grand mediation of Chinese cultural tradition and distinctive Chinese characteristics with the aid of the power of people's mediation organizations.The first issues that should be resolved by criminal composition in our country are to confirm criminal composition as a basic principle of criminal case, and to revise criminal procedures law. Criminal composition is suitable for all the criminal cases. Composition can be applied as long as the offender's party and the victim's party are willing to compromise, no matter high crimes or misdemeanors the offender has committed and which phase criminal case has reached. But criminal composition must be applied cautiously and strictly in accordance with correlative procedures.1. The Application Scope for Criminal Composition. The specific situations of the cases can be based upon to decide whether Legal organs ought to or can apply criminal composition: a. To misdemeanor cases, legal organs should apply criminal composition. b. To felony cases, legal organs can not apply criminal composition.2. The Application Conditions of Criminal Composition. Firstly, offenders admit their guilt, obey the laws and enter plea of guilt. Secondly, the criminal facts are clear, and proofs are ascertained. Thirdly, offenders and victims volunteer to comprise.3. The Application Objects of Criminal Composition. The application objects are units and individuals. Criminal composition can be applied as long as the condition of the offender or the victim fits the application scope and the application conditions.4. The Application Procedure of Criminal Composition. The procedure is generally composed of four phases: commission of judicial oranges, parties'meeting, reaching settlement agreement, and execution and intendance of the protocol.5. The Execution and Consequences of the Protocol. After a composition is reached, the mediator should submit the criminal composition protocol with legal force to legal organs, by which the protocol will be censored and affirmed. If the content of the protocol is true, lawful and applicable after the examination, decisions will be made respectively according to the content of the protocol, case situation and correlative rules as the following: as for those who have already performed the content of the protocol, legal organs legally make decision that criminal responsibility shall be affixed to the suspects, and have their punishment mitigated or waived. As for those who have not worked the protocol off, the offenders are required to perform the protocol self-consciously, or the composition protocol will be terminated, and criminal prosecution will be started or penalty will be directly executed. If the content of the protocol is not true, illegal and inapplicable after the examination, the protocol will be returned to people's mediation center for another criminal composition or criminal case procedure will be directly started.6. Legal Consequences of Criminal Composition Legal consequences are different for application phases are different, namely: not to put on a record, revocation of suits, decision of relative non-prosecution, mitigation or waiver of punishment or declaration of suspense sentence.Though processing rich working experience in grass-roots mediation, People's Mediation Centre needs to have its mediators receive training of professional knowledge and instruction of professional work for criminal composition is highly professional. The three legal organs, public security organs, procuratorial organs and people's courts, also need to oversee the execution of criminal composition. So procuratorial organs should strengthen legal supervision of criminal composition work. As a newborn thing, criminal composition should be approved for its positive functions, and at the same time, we should know that it also has some negative functions: first, it mitigates the general prevention function of penal punishments. Second, it violates the equality principle to a certain extent. In order to lower the amount of negative factors as small as possible, the application of criminal composition should be restrained strictly, supervision of criminal composition strengthened. Correlative systems and measures should be unveiled and adopted simultaneously to build criminal grant composition system: 1. to establish victims'national compensation system. It is necessary to establish national compensation for those who are hurt by crimes, which prescribes that they can apply for a certain amount of national compensation according to their damages. The sources of national compensatory payment contain penal sum from criminals, confiscated properties, offenders'payments in criminal composition, donation from society, and national finance allowance. During criminal composition, the offenders who have economic compensation abilities pay the victims directly by themselves. For those who do not have economic composition abilities, the country uses national compensation funds to make advance payments, and then offenders return some of the money to the country every year. They can also use other forms like community service to pay off. 2. To adopt the measure of the docking of criminal composition and community correction work. The whole framework of criminal composition will be greatly perfected and becomes more applicable if community corrections are used as a type of statutory sentences and link up with criminal composition. At this time, community corrections penalty can be applied to minor offenders with whom criminal composition has been reached and to whom criminal responsibility should be affixed in order to correct criminals through community services.By the combination of criminal composition and the present people's mediation in our country, along with the full cooperation of judicial organs and people's mediation organization, the disadvantageous situation of disregarding the protection of victims'rights in criminal justice tradition of our country can be thoroughly turned, socialization of penalty execution can be provided a new way of thinking, and the harmonious society construction can be provided a strong judicial guarantee. |
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