Study On The Prohibition Order System Of China

For a long time, the actual implementation and effect of surveillance, probationsystems are not ideal. In practice，surveillance-elusion are widely seen，whichundermines the value of these non-imprisonment punishments to the full ofrehabilitation of prisoners. On the other hand，as the severity and extensity ofpunishment policy continues to implement，the number of surveillance and probationare increasing abundantly. As a result，it’s high time to strengthen the supervision andeducation of the surveillance prisoner. Learning from the experience of foreignlegislation and combining the reality of our country，The Amendments To The CriminalLaw (Eight) includes the regulation of Prohibition Order （PO for short） on thesurveillance prisoner and the probationer. As an important innovation of our country’spenalty system, PO has a positive value. First of all, PO attributes to the actual effect ofthe punishment; secondly, the Prohibition regulations are good for thenon-imprisonment punishment of the reform of criminal law to reform andimprovement；thirdly，the implement of the PO is according to the potential risks ofeach suspect and bring about a purpose to the probation system, not only to achieve theeffect of correctional education, but also to reflect the value of individualizedpunishment.The PO prohibits the suspects from participating in specified activities, enteringcertain areas or facilities, and approaching listed groups, which are also covered by thesecurity punishment and probation directions of other countries. Studies into probationdirections will definitely provide us with clear understandings of both the legal natureand proper application of the PO. However, so far there is no unanimous agreement onthe legal nature of the PO.Actually, although it is helpful to comprehend the nature viacontent-function, it’s difficult to carry it out. In the research of the legal nature of PO,it’s more meaningful to keep an eye on the subsequent comments. Taking thosecomments as the start points and combining the systematic explanation of the PenaltyLaw, it is more reasonable to define the PO in surveillance as security punishment whilethat in probation as probation directions. With all the penalty theories involved, the mostdirect theoretical basis of PO must be the theories of Special Prevention and PhysicalDangers.In order to make sure that the PO system is properly implemented，the Supreme People ’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security andthe Ministry of Justice published jointly Provisions Of the Relevant Issues to CriminalsSentenced To Control, On Probation Applicable Prohibition（trial）which furtherexplains and clarifies the application of PO. Notwithstanding, there are still variousproblems concerning proper implement, esp. the definition of the application conditions,confusing procedure, etc, which would turn into the focus for future studies.Since the birth of the PO system，it has aroused widespread discussion betweencontroversy theorists and practitioners in China. Scholars make various differentconclusions to the legal position of the PO system from different perspectives.Integrating different points of view and considering the basic content and functions ofthe PO system，the author believes that the PO for Probation should be regarded as oneof security punishment of criminal law and PO for Retrieve as its instruction. The POsystems of China focus on potential risks of suspect and take it as the core of thissystem.Since the issue of PO，domestic courts have launched the their PO, but also gettingvery cautious of the application, some even suspended the PO, which, According to theauthor results from the deficiency of the PO system and the supporting measures. Themain reasons in practice are, first，the applicability to execute the PO；second，thesituation of The Community correctional mechanism is hard to satisfy the need of thePO；third，the absence of coordination among the People ’s Court, the People’sProcuratorate, the Public Security and the Justice. As a new system，the PO needs to beconsistently enriched and perfected theoretically and practically so as to ensure therealization of the target. The author supposes that although it’s necessary to reform thePO, it’s more meaningfully to work on the short term improvement than the long termconsidering the current embarrassing status of PO in application. In the future thelegislation should take these following measures, first, establishing pre-trial personalityinvestigation system；second，establishing formal measuring system for PO；third，strengthening the coordination of all relevant functions；fourth，expanding the dedicatedcommunity correctional team; fifth, establishing diverse but integrated andwell-connected execution mechanism.