On The Probation Application Of China

As a penal measure that has been adopted worldwide, probation has an important position in the system of punishment. It not only conforms to the execution economization, light punishment and execution of the socialization of principle, but also help to avoid the disadvantages of short-term freedom penalty. However, empirical studies have found that probation failed to perform its function properly in China, because of the vague legislation, the unreasonable habits and institutions in court and the lack of sentencing supervision in prosecution. As a basis for analysis, we should improve the following aspects to make the organic unity of correction, education and punishment. The specific measures include refinement of probation conditions, breaking the unreasonable habits and institutions in court, improving the sentencing supervision in prosecution, community correction mode and so on, in order to reveal the unique characteristics, and probation with other punishment measures combined with the "tempering justice with mercy" form the punishment system.The paper has four parts. The first part is "the general theory of probation application ". In this section, we propose the probation system is based on the penalty of restraining, the combination theory of retributive punishment theory and purpose of punishment theory, and the individual punishment theory. Besides, we have analyzed the meaning of this theoretical basis. Compared with short-term liberty, offsetting the weaknesses of short-term liberty is the main reaction of probation's applicable value. What's more, we analyze the influence on probation adoption briefly, which is made by constructing a socialist harmonious society and having mercy on criminal policy of temper justice. The second part is about " applicable status of probation in China". We conclude the basic features of the probation application in judicial practice according to the probation application of wuhu city's primary court in Anhui from 2005 to 2010. Including:probation application for higher rates generally and a rising trend, probation application is unbalanced between county and district, charges applicable widely but also relative concentration, probation application by criminal coercive measures is significant, and so on. In the third section, we talk about the problems of probation application in China and analyze them. Pointing out many problems, like the defects of probation legislation, the shorts of court's internal habits and the institution, inadequate prosecutor sentencing authority, the effects of the lack of probation procedure and sentencing procedure, the problem of probation execution, and the high rate of the probation adoption on typical personal crime. The last part, " some countermeasures to improve probation application in China ", aims at the existing problems of probation application, proposing solutions respectively, which include refining the probation application conditions, breaking down the irrational factors in court's inner habits and the system, intensifying legal supervision of prosecution in sentencing link, building the procedure of probation and sentencing which includes predicting recidivism survey system, improving the community correction system and legal responsibility, making a further regulation on typical personal crimes'probation.