Constraction Of The System Of Elimination Of Previous Conviction In China

There is no explicit concept of "previous conviction" in relevant laws in China, but the negative effects that it brings are found in criminal, civil and administrative aspects. It’s not fair for the people who have repented if it exists permanently. While some countries and areas have established the system of elimination of previous conviction, there is no explicit and complete regulation in the criminal law in China. Therefore, the article tries to put forward tentative ideas about the establishment of the system.This article is composed of four chapters:Chapter Ⅰ:An overview of the system of elimination of previous conviction. In this part, on the basis of analyzing the focus of controversy over the concept of previous conviction in China, the article redefines the concept. Then the article elaborates the consequence of previous conviction, including legal effects and non-statutory effects. Thus, the issue of elimination of previous conviction is put forward based on its disadvantages. Elimination of previous conviction is a criminal justice system that the criminal records of those who were sentenced to criminal punishment or only convicted but free from the criminal punishment, when legal conditions permit, are cancelled by the court through legal procedures and their legal status is returned to normal. Then according to its nature, two views are pointed out about the elimination of previous conviction:elimination of the criminal record and restricted publicity of the criminal record. Through the comparative analysis, the article holds the idea that the latter is more reasonable. Then by analyzing the relevant provisions in the criminal law, the article points out the defects.Chapter Ⅱ:The extraterritorial investigation of the system of elimination of previous conviction. Through collecting the relevant regulations about elimination of previous conviction in France, German, Russia, Japan, Hong Kong, Taiwan and Macao and summarizing their differences in the legislative model, the applicable conditions, time conditions and ways of elimination, the article thinks they can provide references for China. Chapter III:Analysis of the reasons for establishing the system. First, the article thinks the reason why such a system has not been set up in China lies in the bondage of the traditional criminal law and the influence of criminal law culture which attaches importance to punishment and makes light of protection. the author proposes that the system of previous conviction embodies the social protection function of the criminal law, while the system of elimination of previous conviction displays the human rights protection function and justice value of the criminal law. Then through comparison, the article thinks it’s feasible and neccesary to set up the system of elimination of previous conviction at present in China. And the article analyzes the feasibility and necessity of establishing the system respectively from the perspective of economics, crime psychology, sociology, combining the criminal policy, theoretical practice and the obstacles in China.Chapter IV:Construction of the system of elimination of previous conviction. Through the above analysis, in reference to extraterritorial legislation and combing China’s national conditions, the article puts forward a plan for establishing the system including the legislative model selection, entity elements, the program design and relevant administrative, judicial, social safeguards. Moreover, considering that the juvenile offenders are more flexible and less subjectively vicious, the article proposes a special design for elimination of the juvenile previous conviction including shortening the statutory period, expanding the applicant scope and reducing conditions for elimination ahead of time.