Research On Some Problem Of Fine Penalty Enforcement

Fine penalty has a long-standing in the whole history of criminal penalties, as a kind of property penalty, which plays an increasingly important role in the current penalty system in many countries, and even in many developed countries it gets equal emphasis with punishment of liberty. In comparison, the penalty in the history of our country has always been able to see its shadow, but its emphasis is not optimistic. With the 1997 Criminal Law increasing the rate and the scope of its application, the fine penalty has come a long way for progress in our country's penalty system and judiciary, while pleasing but we can not conceal the gap with other countries and the resulting issues of one kind or another. Facing the various difficulties in punishment execution and the voice to perfect the fine penalty from the judicial practitioners, we must enhance its theoretical level research and analyze the root causes which has hampered in its application without delay. In view of this, the author exercises this article.In general, the legal theory study begins with basic theoretical knowledge, on this basis, studying the specific issues or phenomena. This paper studies the problem without exception. The author makes the basic theory of fine penalty as a start to explain its history evolution, application value and the status, on this basis, talking about the specific problems existing in the implementation of fine penalty. Then, he analyzes the reasons of this difficult situation, and gives his own views on the implementation difficulties.This paper is divided into four parts, specifically.Section 1 launches the fine penalty's elementary theory and analyzes anything is the fine penalty in detail. First, what is clearly fine penalty that is clear from a legal point of view about the concept of fine penalty: Fine penalty as a penalty method which is according to the court takes force criminal offenders to pay a certain amount of money to the state. Summarized the fine penalty legal characteristic from the concept: The fine penalty is one light penalty method; the fine as a property punishment takes force the criminal offender to pay certain amount money to the nation; the fine can only be suitable to the criminal offender; the fine can only be suitable legally by the People's court. In order to further understand the concept of fine penalty, we can compare the it with the administrative fine, the damage compensate, retrieves, the confiscation crime obtained and the crime goods, the seize property from their features, thereby enabling the fine penalty's concept greater clarity. Following we generally introduce the historical evolution of the fine penalty, so that we know it is one of the earliest penalty methods in the world. With the development and progress of human society, fine penalty is developing increasingly and getting more and more community's attention. Through the comparison with the old and new Criminal Code of the fine, China's new Criminal Code is significantly increased the provisions of the fine penalty which indicates that it has become an important criminal penalty method. While the people from countries around the world have different arguments about the fine which some think it has many advantages while others don't think so, the fine penalty is still widely used and play an invaluable role: The fine penalty is a effective measure of punishing and suppressing the corrupt advantage perpetrator; The fine penalty conforms to the penalty economical principle; The fine penalty may avoid the perpetrator in the prison to the malignant cross infection; The fine penalty is the best method about punishing the corporate crime; The fine torture instrument has may the attachment. Finally, the article elaborated the fine penalty from the angle of the present situation. From China and the foreign view of the application of fine penalty, our country present fine penalty's present situation is unoptimistic. Fine penalty in the West has been getting universal attention and will obtain further development, but in our country because knew that on and is suitable on the reason, not only in the legislative provisions on fine penalty is less and applicable to narrow, but in judicial practice, the application applies for a low rate. Our country fine punishment's present situation does not adapt to our country socialist market economic system reform request, the penalty reforms immediately.The second part focuses on the specific issues arising in the implementation of fine penalty, putting forward"difficulties of execution"which lays the groundwork for the reasons discussed below. First, the personal property and the family joint property often mixes in a body influenced by the traditional family ethic ideas and family structure, which leads to the difficulty to separate the personal property from the family joint property and the implementation of the bound feet of fine penalty. Second, because of the imperfect legislation, and the suspect motives and implementation land of Money-Lured sexual crimes such as theft, the implementation of fine penalty is limited. Third, taking the particular identity of juvenile defendants and the guidelines to save them into account, how to apply fine penalty is a potential problem to be solved. Fourthly, the frequent"empty sentence"phenomenon also can not be overlooked.The third part analyzes the reasons of"difficulties of execution"in angle of theoretical analysis and empirical analysis. Stiffness of the provisions of the law, the principle of the uniqueness of discretion, the lack of implementation of the safeguards system etc, are all the contents of empirical analysis; Viewpoint of the masses led to the implementation of fatigue, lack of alternative measures for the implementation of the specific implementing agency of the fuzzy and the imbalance of collaboration within the judiciary, criminal suspects and their families and other reasons are the contents of theoretical analysis.Through the above analysis, in section 4 proposed that the solution which fine penalty carries out the difficult countermeasure. First, perfect the legal text. Because our country present criminal law stipulates not perfectly to the fine penalty is one of the reasons that causes the fine punishment to carry out difficult, here we propose the revision plan to the general rule with the minute in order to achieve the fine penalty in the legal text consummation. Second, the establishment is advantageous in the execution of fine penalty decides after deliberation the principle. The fine penalty is as one penalty method, it eliminates the rights and interests are a property, this characteristic had decided that if the fine penalty is suitable, it has no alternative but to consider the question about receiving punishment person's financial circumstance and the actual payment ability, otherwise, the fine condemned possibly to divorced from the reality and finally caused to carry out impossibly. Because of it, here in order to enable the fine penalty to obtain and the complete execution effectively and play its achievement penalty's role truly, we must establish the fine decides after deliberation the principle that not only by the crime plot primarily but gives dual attention to perpetrator's financial circumstance suitable. Third, construction fine penalty safeguard mechanism. Here we propose three countermeasures, for example, the establishment property investigation and the system of attachment transfer; the system that property is taken care of by the volunteer; the system the strict property to detain in advance. Fourth, perfect the implementation mechanisms of fine penalty. The fine penalty is realized through carrying out the property, who should carry out and how to carry out is more scientific reasonable are the question we are faced at present. Here we propose to establish the court execution as the fine penalty special implementing agency, stipulate the condition of transferring the execution, formulate the measure execution and set the end execution condition and so on. Finally we propose some long-term significance solution countermeasures, such as we can strengthen the common law and correct concept which let the population understand that the fine penalty can also pain to the perpetrator as the death penalty and the free punishment may create, but the manifestation is indirect; If the fine penalty execution does not affect the principal penalty, the human and the family member will have the resistance naturally to the fine execution. If the fine punishment's execution may take commuting a sentence and the parole reference condition, the human will carry out the fine enthusiasm. At present many countries have the system of the fine penalty to commute a punishment, if our country can profit from the system that the overseas procedure to use the fine penalty to commute a punishment and accommodate the execution way, we will reduce the difficulty of the fine penalty execution.