On The Recidivist System In This Country

The recidivist system formulated in the existing criminal law in this country is scientific and logical on the whole, which basically accords with the need of attacking and taking precautions against recidivism and the requirement of penalty theory at that time, it's also in accordance with the instances of legislation of most countries in the world, however, some problems about legal rules of recidivist system in this country exist from the view of practice of criminal judicature not only in system design but also in legislative techniques and other aspects, which brings some confusion to practical workers, so it should be perfected keeping pace with the times.Recidivist system is a kind of basic penalty system, which is produced on the basis of the appearance of the phenomena of recidivism and has played an important role in punishing crimes and reducing the rate of recidivism. That has been approved by the majority of nations in the world.The problems of recidivist have been valued in this country, recidivist system has been formulated definitely in the first penal code of new China issued in 1979. It should be mentioned that the recidivist system in this country has a better practical effect on fighting against those criminal offenders who commit crimes again, have much subjective culpability of the mind and remain impenitent. However, new situations and new problems of criminalities constantly appear as the development of economy and the progress of society. Recidivist system was only amended in two parts when criminal laws were amended in 1997, the one parts was that the period between ordinary recidivist's former crime and later crime was altered from 3 years to 5 years, and the other part was that the accusation of special recidivist was altered from crime of counterrevolution to crime of endangering national security, and other parts were never altered. The existing recidivist system has to be rethought by us from the view of the present theoretical disputes and judicial practices because of some problems which have existed before and become more and more outstanding now. That problem has been noticed by scholar and practical field already, penalty theory and recidivist system have been undertaken series of studies by them, some results have been achieved, and the above supply valued proposals for perfecting recidivist system in this country. Through reading these articles and on the basis of thinking over some problems of recidivist system in practical operation, discussions about establishing basis of recidivist system and constitutive requirements of recidivist are carried out, parts of present hot issues about recidivist system in this country are thought over and analyzed, based on the above, personal views about perfecting the recidivist system in this country are put forward by the author, which hopes to benefit for perfecting recidivist system in this country.Recidivist system is summarized in chapter one. First, the concept of recidivist has been defined again in this chapter. Multiple understandings such as recidivist in criminal policies, recidivist in criminology, recidivist in criminal laws and so on are included into the concept of recidivist since the beginning of recidivist system. Recidivist is defined by the author from the view of criminal policies on the basis of the need of research on this paper, the concept of recidivist is described as a system of criminal performance in which the person who were sentenced once because of crimes but commit crimes again in a certain period are given a severe punishment by lawmakers. And then, the foundation of establishing recidivist system is analyzed by the author, which thinks that the existence of a certain of phenomena of recidivism is the realistic foundation of recidivist system, retribution first and giving consideration to utility in the precondition of insisting on the relationship of dialectical unity of retribution and utility are merited theoretical foundation of recidivist system in this country. Third, types of recidivist system are analyzed briefly, the advantages and disadvantages of center theory of action of recidivist system and center theory of actor of recidivist system are presented, which provides theoretical supports for putting forwards proposals of perfecting recidivist system in the following text.The conditions of establishment of recidivist are reflected in chapter two. Ordinary recidivist system is thought of and presented mainly by the author from the aspects of subjective factors, criminal factors, factors of quantity of crime, factors of time and main elements and so on combining with present legislation situations in every country and disputes in Chinese academic circle, which thinks that the requirements of subjective factors, criminal factors, factors of quantity of crime and factors of time of existing ordinary recidivist are scientific and reasonable. At the same time, it thinks that the understanding of completeness of execution of punishment stipulated in the 65th article of Chinese present criminal law shouldn't include completeness of execution of supplementary punishment combined with the analyses of requirements of factors of time of recidivist, original idea of legislation and practical operation, it also thinks that committing crime again on purpose after the end of probation period should neither constitute recidivist; unit recidivist system shouldn't be established now combined with the analyses of main elements of recidivist, criminal policies in this country and judicial practice, but pupil should be excluded from recidivist.Some proposals on perfecting recidivist system in this country are put forward in chapter three. Proposals on perfecting recidivist system on next step in this country are put forward by the author, which goes from the implementation of every criminal policy, the goal of the establishment of recidivist system, the right use of criminal theory and the need of judicial practice and maintaining public order. It thinks that pupil should be excluded from recidivist; recidivist can be released on probation; the scope of special recidivist should be expanded appropriately, eleven crimes which are serious harmful to society and have high rate of recidivist such as crime of endangering national security, crime of organizing, leading and taking part in organization engaged in terrorist activities, crime of organizing, leading and taking part in criminal gangs, crime of intentional killing, crime of intentional infliction of bodily injury resulting in a person's death, crime of kidnap, crime of rape, crime of explosion, crime of drug dealing, crime of pillage and crime of theft etc. should be regarded as the crime nature of special recidivist.Recidivist system is a system of social law, it is the reflection of which objectivities are indicated in subjective activities for human beings to find out and change the world. Recidivist system should be researched more systematically and deeply as the development and change of objective situation, recidivist system also should be more perfect. How to optimize the system of law--recidivist system is certainly included into it--which ensures and promotes the development of economy and society is also the corporate responsibility of educational circles and practice circles especially under the big background which builds harmonious society and implements scientific thought of development. Effects which political theories such as harmonious society theory, scientific thought of development theory etc. and other theories have on recidivist theory and even penalty theory should be concerned at the same time of concerning the research on theoretical framework of the Science of Law, recidivist theory and recidivist system should be perfected further in this country, so that the effects of recidivist theory and recidivist system can be brought into play richly.