The Research For Prerequisite Conditions Of General Recidivist

Recidivist system is an old penalty measurement system with a long history. Because of its serious subjective malignant and personal dange, recidivists have become the major focus of criminal policy in all countries. In China, recidivism system is also an important factor in the penalty measurement system. The first criminal law of P.R.China issued in 1979 clearly defined the recidivism system. Eight years later, the 1997 Criminal Law of P.R.China has made a lot more amendments to the recidivism system, such as having amended the time interval between crimes of an ordinary recidivist from "within 3 years" to "within 5 years" which appropriately expanded the range of recidivists. The establishment of the recidivism system has ensured the achievement of the special prevention and general prevention of the penalty purpose, and has given realistic significance on crime punishment and crime prevention. In China, there are two types of recidivists, one is ordinary recidivist and another is special recidivist, among which the special recidivists are not within the discussion scope of this article, here the tenable conditions of ordinary recidivists are the only comments point.The provisions of the Article 65(1) of the current Criminal Law, specified that "a criminal who had been sentenced to more than a fixed-term imprisonment penalty, after his sentence is served or after remission, if he has repeated a crime within five years and has been sentenced to a penalty of more than fixed-term imprisonment again, then this criminal is identified as a recidivist who should be severely punished, except for negligence crimes." Accordingly, the tenable conditions of an ordinary recidivist are:nature of the crime condition, penalty condition and time condition, In judicial practice there are many issues within the tenable conditions of the recidivists which still require consideration and discussion, such as within the nature of the condition, due to the nature of the condition meaning both of the former crime and the latter crime of the criminal must be intentional crimes. If both of the former and latter crimes or one of the two are/is a negligence crime then the recidivist charge cannot be made. Due to the uncertainty of the specific provisions of the Criminal Law about the crime forms of whether many criminal charges are intentional or negligence, therefore if a reasonable definition to the crime forms of these criminals cannot be given then it certainly can effect the tenable scope of the recidivists. A criminal can be defined as a recidivist only when his crime form is intentional, so how to correctly distinguish the crime form has become the primary problem of identifying recidivists. There are also exists problems of avoiding repetitive assessment in penalty condition and time condition, there are many problems such as the recognition of foreign criminal judgments, the time and condition recognition of cross-law offenders, as well as the sentencing of cumulative recidivists which require study. This article starts from the crime nature condition, the penalty condition and the time condition of the tenable conditions of ordinary recidivists to carry out research to above mentioned problems, being able to carry out a more comprehensive study to the problems existing in judicial practice. When studying these problems, firstly take an overview of different point of views on the basis of carrying out analysis to different views, and put forward own opinions. The studies on these problems are benefit to clarify the tenable conditions of ordinary recidivists, which also has realistic significance to the correct identification of the ordinary recidivists.