Research On The Elimination Of Previous Conviction System

Previous conviction refers to the facts that someone has been proclaimed crime or has been sentenced to penalties. As long as the perpetrator has been declared guilty, wether or not he/she was sentenced to penalties, which penalties were sentenced, the penalty is executed, shall not affect the establishment of criminal records. The elimination of previous conviction system means a kind of criminal system that previous conviction who had been sentenced or declared guilty by the court, his criminal record would automatic eliminate or eliminated by the State through the legal procedures when comply with the statutory requirements, so that the unfavorable state will vanish and his normal legal status will be rehabilitated.The meaning of the elimination of previous conviction including recovery of the right is more abundant than the recovery of the right. The elimination of previous conviction and rehabitation protection are two different systems protecting the the interests of offender from different points of views. The content of elimination of previous conviction should include three areas:the conditions of the elimination of previous conviction,eliminating criminal record and vanishing the unfavorable state. The elimination of previous conviction system has functions of influence and consolation for offender;and has functions of integration and pity on the society. The elimination of previous conviction and the penalty have the same special preventive function,however, the purpose of achieving of penalty mainly depends on punishment and exclusion to offenders,while the elimination of previous conviction help the offenders resocialize by the means of eliminating criminal records and recovery of the right and so on.. There are solid theoretical foundation and necessary and proper existing reasons for the generation of elimination of previous conviction system regardless of the agument of justice and human rights of jurisprudence or the exposition of the balance principle of crime and penalty, punishment retribution and special prevention. Not only does the elimination of previous conviction system contain virtues of modesties of criminal law and social protection,but also it absorbs the protection of human rights. In the protection of the legitimate rights of the offender,the system at the same time protects the human society to advance towards a more harmonious direction.Reviewing the situation of China's legislation,not only there isn't the elimination of previous conviction system in the criminal law,but also it sets the unique the reservation of previous conviction system,for instance, the recidivism system of 65th of the Criminal Law, the report of previous conviction system of 100th and special recidivism system of 349th..This results in so many adverse effects for offenders after the penalty was executed that the offenders will confront with a lot of obstacles in the process of resocialization and self-repentance. So, not only it has great theoretical value to construct the system of elimination of previous conviction that adapts to China's national conditions through a comparative study and reference,but also it has the positive practical significance.Based on the above study, the paper is divided into five parts in all, the first part is the elimination of previous conviction system and the basic concepts related to it,including previous conviction, the elimination of previous conviction, the recovery of the right and rehabitation protection. The second part is the basic definitions about the elimination of previous conviction system, The paper expands discussion from the requirement of elimination of previous conviction, elimination of crime record and vanishment of unfavorable state in the basis of clarifying the related concepts.The third part disgusses the theoreticl grounds establishing the elimination of previous conviction system,the perspective is confined from the basis of jurisprudence,crime and punishment theory.The fourth part makes a thorough self-criticism of the current situation of the reservation of previous conviction whose a variety of defects has been pointed out from the view of Chinese traditional legal culture.The last part's chief argument is that how to construct the elimination of previous conviction system in Chinese Criminal Law,including selection of legislative models,amendment of Criminal Law and adjustment of other laws and the special problems of juvenile crime of the elimination of previous conviction system.