An Empirical Study On Probation Appliance

The eighth amendment of criminal law has clarified that the probation appliancecondition can be divided into three terms: the precondition, addressee condition andessence condition. Further division is also made in the addressee condition: exclusiveaddressee, specific addressee, and general addressee. Taking the conditions fully intoaccount is necessary to properly apply the probation. Probation appliance can bedivided into two phase: the discretion phase and the execution phase.In the discretion phase, characteristics are the imbalance of probation appliance,high frequency of probation appliance in criminal negligence and low frequency incalculated crime while some crime are highly likely to be applied probation, and closerelation between probation appliance and paying penalty, surrendering ill-gotten gainsmaking compensation, being enforced with coercive measure and judiciary procedure.Problems can be found in probation appliance, like the low frequency of probationappliance in juvenile crime, high frequency and even abuse of probation appliance induty crime, the lack of sound restriction on judicial discretion and the ineffectivesupervision. Probation discretion can be influenced by criminal character,circumstance for sentencing, harmful consequence, subjective aspect of crime, thevictim understanding, criminal policy, investigation and so on. In the execution phase,characteristics are the low frequency of probation cancellation and the low frequencyof recidivism of probationers. The problems in this phase are pervasively breakingand missing of control, defective probation cancellation procedure and inefficientsupervision. Both the economical and humanity factors are found in influencing theprobation execution.To solve the problems existing in the two phases: first, enhance judges’capability, restrict reasonably their discretion right and set up the investigation systemand hearing procedure in discretion. Second, clarify the executive agent of probationand perfect community based correcting system, probation delivery procedure andprobation cancellation procedure. At last, censor ate should fully execute itsupervision function, the supervision by public opinion should be enhanced by relyingon the mass. The execution of the above mentioned improvement must promote thebetter execution of the new prescript of the eighth amendment of criminal law.