Discussion On The Legislation Vice And Perfection Of The Commutation System In The China

Commutation system is an important mechanism of the enforcement of penalty as well as a tool of encouragement to appropriate criminals during the sentence in our country. It particularly shows a policy of combination of punishment and generosity, penalty and alteration, penalty and education in the enforcement of penalty. It has an important real significance for arousing the criminals'reforming enthusiasm to return to the society and their family earlier and reduce the disadvantage of the long freedom penalty. Commutation system plays positive roles in the preventing the criminals to commit a crime again and in the stabilizing the prison's order. But commutation system has some problems that cannot be overlooked in the theory and practice. These problems not only frustrated the criminals'altering enthusiasm, brought the negative effect to the prison's management, but also reduced the system's positive significance, violated its legislation spirit.Although commutation system is provided in the Chinese law such as the criminal law, the prison law, and so on, it has many legislation vices such as the condition for object and limitation, the procedures of application, and so on. So it needs to perfect from the following aspects: First, the peculiar protection clauses for the pupils should be provided specially in the criminal law so that it shows humanitarianism spirit of criminal law in the socialism. Second, the clauses that probation, execution out of prison and appeal could apply to commutation system should be provided definitely in the criminal law so that it accorded with the tenet of the commutation system, the direction of the society development and the tide of the era development. Third, commutation rights should be exerted by execution department in China. Commutation is not the part of judgment but the tool of the enforcement of penalty completely. Forth, the criminal law should set up commutation-testing system and commutation-canceling system. One of its basic principles is"crime and penalty are legal". If the object, procedure, and range and so on, applying to commutation, aren't provided in the criminal law, the application of commutation will carry out the principle hardly in the judicial practice. So it needs to provide comprehensively and specifically every aspect of the commutation system in the criminal law.