The Study On Establishment Of Exchanged Penalty System In China

The exchanged penalty system is a flexible system of penalty execution.Although it was disappearing in China after the PRC established,it has been adopted by many countries all over the world,and contributed to penalty goal realization.The object of exchanged penalty system only includes declared penalties.The punishments which replace original criminal penalties includes not only other criminal penalties,but also qualified alternative measures.In the conditions of "unfavorable execution"and "little social harmfulness",the criminals who are declared short-term freedom penalty may be adopted to exchange their penalties;and fine punishment may be changed in the conditions of "impossible execution"or"unfavorable execution".The author holds a viewpoint that felonies can be exchanged in some situation,and its determination is concerned to the position of exchanged penalty system in a nations’criminal law system.By comparing exchanged penalty system to probation,parole and commutation.the author holds a viewpoint that exchanged penalty system has its independent meaning.This paper concludes that exchanged penalty system has following characters:light and punishing,reversible and irreversible,it is the final choice in execution procedure,and the exchanged penalties match original ones. This system matches the value of justice, which does not merely serve the privileges.And,short-term freedom penalty exchanged system matches the value of light,humanitarian and socialization,which is satisfied with the worldwide trend of criminal penalty development.At last,it costs less and makes execution more effective,which matches the values of economic and efficiency.This system has experienced test of history and it is adopted by many nations nowadays,it is a good way to penalty goal realization. Settling a democratic exchanged penalty system should be on the basis of developing the useful and discard the useless aspects of history,which includes:limitation to the scope and objects of exchanged penalty system;the authority to determine should be limited;the abundance of ancient exchanged penalty system can be inherited.The disadvantages of short-term freedom penalty includes that embarrassment of its punishing strength,issues of cross-infection labeling of criminals and high social cost with low efficiency,which could be solved by settling a exchanged penalty system.For solving problems such as execution difficulty of fine punishment,a exchanged penalty system is going to be effective.For establishing a exchanged freedom penalty system,this paper holds the viewpoints that:in the beginning of establishing this system,the scope should be limited within "short-term freedom penalty". The way to settle such a system,which is supposed to be moderate and satisfied with Chinese social values, should be close to "community correctional system" confirmed by<the8th Amendment of Criminal Law> and start from a angle of "special people".For establishing a exchanged fine penalty system,by summarizing instances of legislations of Taiwan, Macau and other nations,this paper put forward "a exchanged system of fine punishment based on a two-way determination and a distinguishing way to exchange"."A two-way determination" refers to exchanging penalties is determined by different ways of fine penalty execution and different reasons for the absence of fine."A distinguishing way to exchange"refers to several exchange rates between freedom penalty and fine punishment,which will be adopted differently to different criminals who are divided by "the two-way determination"."The two-way determination"can figure out different reasons for absence of original penalty execution,which reflects the principle of "penalty matches its criminal and criminal liability ".The key to the "distinguishing way to exchange"is the settlement of appropriate exchange rates between freedom penalty and fine punishment. Sone instances of legislations of Taiwan, Macau and other nations can be adopted.