Commutation Process Study

Criminal proceedings, including investigation procedures, prosecution procedures, trial procedures and enforcement procedures. Commutation process is one kind of enforcement proceedings. As an indispensable process of criminal suit, it has an important significance in human rights protection and the implementation of investigation procedures, prosecution procedures, the trial process. However, all the criminal proceedings research, no matter theoretical or practitional, payes more attention to the rationality and impartiality of the investigation procedures, prosecution procedures and trial proceedings, relatively less attention to the commutation process. Commutation procedures is one part of the enforcement procedures. Therefore, if it is lack of rationality and impartiality,it will not only violate the legitimate rights and interests of executee, but also lead to the blemishing functionality of other process as a result of imperfection of the commutation process. Therefore, a comprehensive and reasonable commutation procedures should occupy an important position in the entire criminal proceedings.At present, the domestic commutation process depends too much on the administrative rules and regulations, departmental rules and regulations or even judicial interpretation. commutation process involves human rights protection of the executee. To regulate it by the regulations mentioned above is not rigorous. The formalization and superficiality of the commutation process could lead to injustice, or even corruption. All these arising problems, gives us the refletion grounds for our existing commutation procedures.There are some research on the commutation process. But I think such research is fragmented, or emphasises too much on one link of the commutation process. Wes should take commutation process as a whole. And without sorting out the problems in every aspect of this process, we can not find the the real causes of problems, and furtherly improve the process. For this reason, the author aimes at doing a full sort of th commutation based on previous research, In referring to foreign legislation and practical experience of the commutation process, the author presents a new way to improve domestic commutation process . This paper consists of four parts.The first part sets out the basic concepts involved in the commutation process. First, the paper defines the concept of commutation and identifies the conditions applied in the commutation, to lay the foundation for the later discussion. Then, it summeries the legislation and its traits in different periods of our society to show that our current commutation process has local sources .The second part is the comparation and learnings from advanced foreign legislative experience of the commutation process. "Stones from other hills may serve to polish jade", the modern commutation process originated in foreign countries. We could learn the advanced legislative experience in the commutation process from foreign countries. First, it reviews the development of western commutation process, to help us understand the significance of the commutation process. Secondly, it explores the nature of the commutation right from the two mainstream model abroad, the administrative power model and judicial power model. the in-depth study of these two models can help us choosing our own legislative model. Thirdly, it summarizes the characteristics of foreign commutation process, and compares it with our current legislation and practice status , in an attempting to discover our existing legislation and practice deficiencies.The third part is the research of China's legislation and practice status of the commutation process. Commutation process in our country there is legislation, Lacking of enforcebility, low legilative rank, procedures'missing and the unreasonable commutation standard and sentence classification, are the problems exsiting in our commutation process legislation. These defects are discussed to improve the legislation. These defects will be studied in three aspects, which are "executive organ of monopoly commutation proceedings ", "decisions of the Court of the procedure missing in the Court's trail process " and "the lack of rights of the parties".The fourth part are the legislative proposal on the improvement of our commutation process. First, it sets out sound legislative principles for the improvement of our commutation process, which will ensure the improvement of commutation processto be carried out under protection of the principles. Secondly, it provides system design for the executive organ of the commutation proceedings, and all juridical aspects and the relevant supporting measures of the commutation case .Paper conduct a comprehensive summary on the problems in China's commutation process to bring up a more rational thingking in the legislation improvement and provide a more comprehensive reference to the people who have the interest in the study of commutation procedure..