Research On The Exchanged Penalty System

At present, the exchanged penalty system of specific Settings, which plays an important role in many countries and areas in modern judicial practice, is still absent in China's criminal law system. Despite the negative attitude some scholars hold against the exchanged penalty system, the paper discusses the theoretical basis of the system after introcuding the related theories.Based on the analysis of China's specific situation, the paper discusses the feasibility of introducing the system with certain adjustments, so as to improve China's existing penalty system. The paper includes four chapters:The first chapter introduces concepts of the exchanged penalty raised by different scholars,, and proposes the author's definition of exchanged penalty, referring to the execution of substitute punishment or sanctions in the circumstance of the lighter penalty which cannot be carried out due to special reasons. In respect of the concept of punishment, the author analyzes the characteristics and theoretical classifications of exchanged penalty, and concludes that the exchanged penalty in its essence is a substitute punishment which does not change the nature of the original penalty.The second chapter demonstrates the basic theory of exchanged penalty. First, from the viewpoint of penalty, with the rapid development of modern economic society, the development trend of punishment is not only the pursuit of efficiency, but has also become lighter and more humanitarian. The exchanged penalty system appeals to the requirement of the development trend. Second, from the penalty goal, the author thinks that the ultimate goal of punishment is to protect the lawful rights and interests of the people, which are inviolable rights protected by specific measurements such as depriving the rights of the offender, warning against criminal prevention, and the reform of criminals. From this purpose, the exchanged penalty system can better protect the lawful rights and interests of the people from illegal violations. Third, from the penalty value viewpoint, the system can achieve relatively better result of fairness and justice, unlike what some consider to be a trade between punishment and money. At the same time, the exchanged penalty can better protect people's freedom.Chapter three discusses the feasibility of exchanged penalty. In the research of short-term freedom penalty, the author first defines the scope of short-term freedom penalty, and proposes the appropriate term to be three years at maximum of imprisonment and criminal detention if short-term freedom penalty were introduced. Secondly, after discussing the drawbacks of short-term freedom penalty including the insufficiency of time to reform criminals, cross-infection of criminals, labeling of criminals, and high social cost, etc, the paper argues that the exchanged penalty can compensate the aforementioned defects, and is also feasible. In the study of penal sum punishment, the author first points out the difficulties to execute penal sum punishment, and discusses the causes from the angels of legislation, enforcement, punished objects, and the characteristics of property. The author then points out the consequences of such difficulties, and the solution to deal with the problem by Utilizing exchanged penalty.In the fourth chapter, the author tries to build our preliminary exchanged penalty system in China. First of all, the author points out the lack of prerequisites to introduced to the system: one is to be set pecuniary penalty as the major penalty; and the other is to add the community service as a substitute penalty. In the construction of short-term freedom penalty, the author first demonstrates its necessity, and argues that probation system is not enough to completely replace the system. Then the author defines the specific conditions of short-term freedom penalty system, and gives the judge to right to use pecuniary punishment or community service punishment. In the construction of pecuniary penalty system, after defining its applicable conditions, the author argues that punishments of pecuniary punishment and community services should be decided after distinguishing if the offender subjectively refuse to obey the punishment or objectively unable to pay the penal sum.