Study On Some Problems Of Systematical Establishment Of Criminal Reconciliation In China

Nowadays, in the background of building harmonious society, it is put more focus by the whole law circle to search a kind of new settlement mechanism in order that criminal justice will meet needs of society development better. The criminal reconciliation system which reflects active value in multilevel has been found favour in accordance with the development of restorative justice. Criminal reconciliation system could be an effective way to change embarrassment of current criminal justice because that it is corresponding to traditional suit culture and could settle different kinds of contradiction effectively brought by criminal crimes. The paper arises systematical establishment of criminal reconciliation through analysing the definition of criminal reconciliation and fuction, discriminating relevant concepts, discussing necessity and feasibility of establishment in China and reviewing criminal reconciliation practice of foreign countries. All above is in order to provide assistance for systematical establishment of criminal reconciliation in China. The whole paper is divided into three parts and the main part is separated into four chapters as follows:Chapter one:The part is to define the connotation of criminal reconciliation discussed in the paper. The connotation of criminal reconciliation is concluded that the essence of criminal reconciliation is a kind of crime disposition, the main content of criminal reconciliation is dialogue and negotiation by victim and offender, the occurred time of criminal reconciliation is in the criminal suit act and the disposition of the relevant case has the character of relief. The part elaborates the functions of criminal reconciliation system, including the function for the government, the victim and the offender. The functions are mainly materialized in saving judicial resource and enhancing judicial efficiency, putting focus on benefit appeals of victim and educating offender back to the society. Next, the author discriminates the relevant concepts and the concept of criminal reconciliation. The relevant concepts are concluded by "private settlement", "mediation", "plea bargain" and "restorative justice". In details, the relation and difference have been elaborated in the form of table.Chapter two:The part is the main part of the paper, and it states the necessity and feasibility of establishment of criminal reconciliation system in China. First of all, the part states the necessity of criminal reconciliation system in China. On one hand, the implement of criminal reconciliation system accords to benefit appeals of all parties, which has been gotten by a case. The implement of the system is both in favor of raising the degree of satisfaction and in favor of protecting the human right of offender and preventing of crime. On the other hand, it is certain claim of criminal reconciliation for building the harmonious society because that the system accords to the criminal policy of combining punishment with leniency, inherits the traditional thought of harmony and integration of China and has the function of resolving social contradictions and repairing social relations. Then, the part states the feasibility of criminal reconciliation system in China. We should draw lessons from the successful experiences of practice by foreign countries. There are three foundational theories in law circle of western countries which are "equity theory", "narrative theory" and "restorative justice theory". Under the theories above, it has four kinds of practice models in western countries which are "community model", "division model", "alternative model" and "justice model". Based on the condition of it is similar of disadvantages in the criminal juridical practice between China and France, the author approaches the relevant elements of criminal reconciliation system in France, which includes the origin, the scope of application and specific procedure of criminal reconciliation. After introducing the experiences of foreign countries, the part states the conditions suitable for establishment of criminal reconciliation system in China. There are system foundation provided by existing criminal legislation, policy foundation provided by the criminal policy of combining punishment with leniency and practice foundation provided by juridical practice by justice authority.Chapter three:The part is about the investigation to juridical practice of criminal reconciliation in China. With the further research in the theory of criminal reconciliation by domestic scholars, some justice authorities has being justice attempting intentionally in many places in China. Most of these attempts are aimed at specific cases of public prosecution, such as juvenile crime cases and minor injury criminal cases, and these attempts have pushed the process of establishment of criminal reconciliation system forward. Firstly, the author collects existing regulatory documents which have been promulgated from 2002. From then on, the regulatory documents being promulgated have been used to unify juridical practice. The justice authorities of Beijing, Shanghai and Hunan do much more juridical practice exploration. Among these regulatory documents, the document promulgated by Hunan provincial procuratorate in 2006 is the first document in China which is directly focus on criminal reconciliation system. "Relative advice of implementation of criminal policy of combining punishment with leniency" printed and distributed by Supreme People's Court makes norm for applying the system of criminal reconciliation. Based on the analysis of situation of applying criminal reconciliation by justice authorities of Hunan and Beijing, the part reviews the current condition of applying criminal reconciliation by justice authorities and the current problems in these practices which includes non-uniform of the scope of application, procedure and the process mode. The last of the part are two typical cases about criminal reconciliation system. Through the basic analysis, the author raises the inspiration brought by criminal reconciliation system. The inspiration has been separated into two aspects that are advantages and disadvantages.Chapter four:The part gives some advice on systematical establishment of criminal reconciliation in China. The part arises the specific elements of model for the system in details which includes the scope of application, condition of application, procedure of application and supervision for the criminal reconciliation system.