| Since the reform and opening up, the economic development of our country has attracted worldwide attention, and the social culture, systems and other fields have changed accordingly. Now the whole society is in a transitional period in which social contradictions is becoming diverse and different types of disputes are emerging one after another, it poses a challenge to the traditional criminal dispute resolution mode and provides an opportunity for the emerge of the criminal reconciliation as a new system. It is in this context that the criminal reconciliation began to come alive in practice.Though the criminal reconciliation is growing vigorously in practice, in theory people have different understandings on the concept of the criminal reconciliation. Three of them are enumerated in this paper. The first one is held by Liu Lingmei, the second by Bian Jianlin and Feng Liqiang and the third by Chen Guangzhong and Ge Lin. Among them, the first one was proposed at the initial stage when the criminal reconciliation was imported to China, while the last two were put forward later.The author agrees with the third one, which says that the criminal reconciliation is a resolution that restore the original order through consultations and cooperation. It is a system in criminal procedure under which national special authorities will no longer pursue the responsibility of the criminal, remit or reduce the punishment if the criminal reaches an accommodation with the victim by way of admitting his guilt, making compensation or an apology. The reasons why the author supports this opinion are as follows. Firstly, this concept clearly specify the connections among the criminal, victim and special authorities under the operation of the criminal reconciliation, especially extrudes the role of the victim compared with the second understanding, which conforms to one of the backgrounds under which the criminal reconciliation emerged,i.e. the status raise of the victim. Secondly, the concept adapts to the reality needs and accords with the characteristics of the criminal reconciliation operated in practice, such as the criminal pleads guilt voluntarily, the victim forgives the criminal, authorities remit the punishment when the personal dangerousness of the criminal is relatively low and so on. The above contention about the concept is the first part of Chapter One.The second part of Chapter One is about the reasons why the criminal reconciliation could grow up in China. In the field of the criminal reconciliation, the practice goes faster than the theory, why does this happen? The author holds that the concept of building a socialist harmonious society proposed by the Communist Party of China and the policy of severity with leniency raised by the judicial department accordingly both play an important part in the development of the criminal reconciliation in China. The third part of Chapter One analyses the importance of the criminal reconciliation from three aspects. From the perspective of social order, the criminal reconciliation resolve the conflict between the criminal and the victim in a moderate way, which helps the realization of harmony among people. From the perspective of real effect of the criminal reconciliation, it has reduced the stress of judicial department and improved the efficiency. From the viewpoint of the victim and the criminal, the status of the victim has been raised and he can get more compensation than before, while the criminal can get lighter punishment in exchange for his sincere penitence.Chapter Two deals with the social backgrounds under which the criminal reconciliation emerged and the theoretical basis on which it is built. The criminal reconciliation originates from the West after all, so it's necessary for us to clarify such basic issues. The backgrounds consist in the weaken of the compelling force of law, the raise of the victim status, the development of the thought of the criminal's returning to society and the question against the disciplinary function of prison. Three theories are utilized by Western jurists to explain the theoretical basis of the criminal reconciliation, which are the Equity Theory, the Narrative Theory and the Restorative Justice. The Equity Theory considers the resolution from the perspective of the victim only, which is one-sided and not comprehensive. The Narrative Theory offers the justification for the criminal reconciliation mainly from the psychology angle, which is not enough for a legal system. The harm of the crime to the victim and the binding relation between the victim and the authorities in the resolution of criminal disputes embodied in the Restorative Justice are in line with the essence of the criminal reconciliation, so it can serve as the theoretical basis.The experiments of criminal reconciliation are done in different districts, which leads to the disunity of the criminal reconciliation application in practice. The conditions, scope and other aspects of application differ from one area to another and scholars hold different opinions. Using a case as the entry point, Chapter Three discusses some specific issues in the construction of the criminal reconciliation which are participation bodies, scope of application, conditions for application and applicable phases. There are three participation bodies in the criminal reconciliation who are the victim, the criminal and the authorities. The victim can decide whether to reach a reconciliation agreement, in order to lighten the criminal responsibility the criminal will try to be forgiven and reach an agreement, and the authorities will review the agreement, make a judgment on the personal dangerousness of the criminal and finally decide the resolution of the case. The actions of the three bodies interact with each other and constitute the framework of the criminal reconciliation. At the moment, the criminal reconciliation is mainly applied to minor criminal cases, but it is hard to avoid some arbitrary to determine whether to apply the criminal reconciliation based on the seriousness of the crime. Such argument can be supported by four reasons. First of all, in practice, the criminal reconciliation has already been applied in serious crimes. Secondly, the criminal was first used in minor cases cannot deny that it can be applied in serious cases. Thirdly, there is no clear-cut distinction between serious and minor cases. Lastly, in some foreign countries, the criminal reconciliation has been successfully applied in serious cases. Besides, the criminal reconciliation cannot be applied in cases where there is no direct victim or where it is the public interests that are aggrieved. The following conditions must be satisfied to apply the criminal reconciliation: there is a specific victim in the case; the basic facts are clear; the parties especially the victim agrees to reach an agreement; the criminal shows sincere penitence and is forgiven by the victim. The idea that the criminal reconciliation can be applied at prosecution examination stage and the trial stage has been accepted both in theory and practice. As for the question of whether it can be applied at the detection stage, the author thinks that it should not be totally forbidden, at the same time, we can prevent the abuse of power by way of narrowing the cases in which the criminal reconciliation is applied and strengthening the supervision on the investigation organ. There's no need to apply the criminal reconciliation at the stage of execution. The reasons are as follows, the existing procedures of commutation and parole can deal with the penitence of the criminal, we can not use the criminal reconciliation after the case has been tried under the traditional procedure, and no body can supervise the power of the execution organ. At the phase of registration, the criminal reconciliation should not be applied. Because at this time, the evidence can only prove that a crime happened, but they cannot testify who did it.After the system is imported to China, someone holds that there are some conflicts between the criminal reconciliation and the existing Criminal Law Principles. Chapter Four analyses the so-called "conflicts" between the criminal reconciliation and the principle of legality, the principle of all people are equal before the law and the principle of suiting penalty to crime and criminal responsibility. The essence of the principle of legality consists in limiting the power of the judicial department to conviction and sentencing, hence protect the interests of the criminals. It does not forbid punishment in favor of the criminal. The criminal reconciliation is such kind of system that will mitigate the punishment when certain qualifications are met, which is consistent with the principle of legality. The very reason that someone holds that the two are in conflict is that the criminal reconciliation has not been stipulated in law,if it has been established in law like meritorious service system and surrender system, there will not be such a dispute. The idea that the criminal reconciliation violates the principle of all people are equal before the law has something to do with the misunderstanding of regarding the system as "buying punishment", which means that rich people can pay some money to mitigate his responsibility. The criminal reconciliation, however, emphasizes the criminal's sincere penitence and the victim's forgiveness. Reaching an agreement on compensation is not enough if the personal dangerousness of the criminal is still high. The criminal reconciliation cannot be applied even though the criminal is rather rich if he cannot be forgiven by the victim. Moreover, when certain prerequisites are satisfied, the opportunity to apply the criminal reconciliation for both rich and poor people is equal. The pre-existing difference in financial condition is something the law can do nothing about. In the case of the difference in the standards for the application of the system and in the compensation among different regions, they can not support the opinion that the criminal reconciliation violates the principle of all people are equal before the law. Article 4 of the Criminal Law says that "All people……are equal in the application of law", here, the law applied to everyone should be the same. While in our case, the regulations about the criminal reconciliation in various regions are not the same, which lead to the inconformity application of the system. So the two cannot be compared with each other, let alone to mention that they are contradicted. Now that the amount of compensation is negotiated by the two parties, it inevitably could be influenced by the local economic development and the living standards of the parties. Such a difference in the compensation amount is natural and is accepted by the law. Therefore it is difficult to say that the criminal reconciliation goes against the principle of all people are equal before the law. According to the principle of suiting penalty to crime and criminal responsibility, the penalty should conform not only to the social harmfulness of the crime, but also to the personal dangerousness of the criminal. When the social harm has already been done, it meets the demand of the principle of suiting penalty to crime and criminal responsibility to apply the criminal reconciliation if the criminal could regret his behaviour genuinely and make an apology because such action indicates that the personal dangerousness of the criminal is relatively low. |
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