Referencing And Studying The System Of Security Measure In China

Security measure is the generic terms of all security controls with the property of judicial penalty by the means of correction, moralisation, medical treatment and abstinence, which is apply to replace or supplement penalty based on necessity of the nation for safeguarding legal order and security demand for satisfying the public for the specific actors with social perniciousness. The traditional retributive penalty theory is based on the theory of moral obligation; even the action that is not in line with the liability conditions of person who doesn't have responsibility has social perniciousness, the person can not be punished. Such penalty theory of responsibilities and retributivism sets many people whom has relative danger for the society but has no applicability of penalty in the outside of penalty attention, which is harmful to the safeguard of social benefit and social order in substance. The penalty theory of traditional retributivism and moral obligation is too sufficient to resolve the problem of juvenile delinquency that getting serious. The malady of short-term liberty penalty is another important reason for promoting the production of security measure system.The basic principles of security measure are the basic principles that shall be followed while regulating and applying security measure. The basic principles of security measure shall contain the content as following: legal principle of disciplinary measures, principle of necessity, principle of equivalence, and nonperiodic principle. Generally speaking, security measure regulated by each country just applies to the person without ability of responsibility who does illegal action that is harmful to the society, the person limiting the ability of responsibility, the person with specific personal dangerousness, the person who can not adapt to the penalty and the pupil as the supporting measures. The objective condition applying to security measure exists criminal or other illegal actions. The subjective condition applying to security measure: personal dangerousness. Security measure for the people can be divided into two measures of deprivation of liberty and liberty limitation. The security measures of deprivation of liberty contain: care measure, obligatory abstinence measure, obligatory remedy measure, measure of influence and education, obligatory work measure, security imprisonment measure and accepted in social correction organization. The security measures of liberty limitation contain: the measure of deprivation of driving permit, measure of practice abstinence, measure of no-fetter torture and supervision, measure of security control and deportation.The current security measures mainly contain: re-education in asylum, education in asylum, enforced abstinence, enforced remedy, re-education through labor, housing and repatriation, enforced operation in the field, cancellation of permanent urban residence certificate, property confiscation, withdrawal of driving license and job prohibition.The basis of criminal policy of security measure: in one hand, it is because that although the person without ability of responsibility or the person limiting the ability of responsibility who does dangerous action has social dangerousness, there is no penalty applicability or insufficient applicability, thus the penalty always has nothing to do with the dangerous action of those people; in the other hand, the penalty is confirmed according to the degree of the responsibility for the offence based on the responsibility for the offence of the actor through action representation; in this case, the penalty strength often can not satisfy the requirement of crime correction and crime prevention. The performance of penalty is insufficient function in two aspects of social security and crime correction and crime prevention. However, security measure can positively prevent dangerous action that cannot constitute crime and unknown crime, comparing with penalty, the passive punishing crime after crime has positive promoter action. Security measure is an effective means for compensating for insufficient function of penalty. Scientific criminal policy requires confirming and accepting security measure thought. Through applying security measure in the outside of penalty, for the person without ability of responsibility or the person limiting the ability of responsibility who doesn't have criminal sensibility, we can deal with it through giving positive remedy and correction means or negative isolation and giving housing measure, which can receive the effect of excluding social dangerousness and satisfying social security requirement. Penalty compensation cannot counteract functional limitation of the dangerous actions of those people; and we can prevent the penalty extending to those fields inappropriately; in the other side, it can be switch by the double-track system and the disposition of penalty and security measure. For the offender who has specific social dangerousness must be treated necessarily and completely and avoid for realizing the task of crime prevention and society defense to punish the penalty that exceeds criminal liability of offender, so save the investment of penalty and even avoid the application of penalty can reach the restraint of penalty and efficiency of shrink-ring. Under the background of criminal politicalized penalty, based on criminal policy, formally the necessity for establishing security measure system under the criminal law of our country shall be self-evident.Security measure criminalization is objective requirement of diversifying penal sanction, realizing modern criminal law education and improving and defending social technology, the requirement for correctively confirming and perfecting security measure system of our country, requirement for coordinating the relation between penalty and security measure and the requirement for promoting process of criminal law.Labor re-education system is a security measure with longest time of limiting and depriving citizen personal liberty and the widest applied arrangement in our current security measure. Since the labor re-education system for more than 40 years, the number of re-educated person who violates various crimes and corresponds to the labor re-education conditions is accumulated to more than 3,000,000, which has made great contribution to crime prevention and safeguard social order. Labor re-education system has involved in more and more embarrassed environment, the criticize to labor re-education also becomes more and more. The reason for that lies in: the first, the characteristic of labor re-education is fuzzy; the second, housing condition of the labor re-education is much general and with much randomness; the third, decision-making process of labor re-education is lacking in basic limitation procedure; the fourth, labor re-education exists legitimacy crisis; the fifth, the practical effect that applies to labor re-education exists serious irrationality. The author considers that, for preventing the minor crime of no great crime, just unceasing small crimes; annoy the police can, and torment the court, labor re-education has been played a certain role indeed. Originally, labor re-education is a measure for strictly controlling freedom through a certain enforced labor re-education to influence illegal crime, but it becomes a penalty for deriving freedom completely in practice. On the basis of using and developing the current labor re-education measures, organization and personal, if can realize the willing of labor re-education that incompletely depriving freedom, make necessary reconstruction the period, applied object and decision procedure of the labor re-education, and absorb those into criminal law system, thus the labor re-education may after all be accepted as n effective penalty measure exceeding the penalty of deprivation of liberty to liberty penalty replacement measure. Therefore, the author considers that the reasonable method is, utilizing current equipment of labor re-education, changing labor re-education into obligatory correction that is a penalty method of semi-deprivation of personal freedom that lies between control (restrict personal freedom) and detention (deprivation of personal freedom for a short time).