Research On Legislative Improvement Of Non-penalty Punishment Of China

Non-penalty punishment is a kind of punishment which is used to offenders whocommitted minor crimes and avert penalty by the People’s Court. Non-penalty punishment isone of the ways to realize the criminal responsibility,which plays a role that cannot bereplaced for the reconstruction of offenders. Although China criminal law includes theprovisions of non-penalty punishment, but there are still a lot of drawbacks, such as indefiniteapplicable condition, deficiency of operability,limited punishment types and limited objects,which severly hamper functions of non-penalty punishment. This article intends to analysisthe status of our criminal law,to find deficiencies and reference the experience of foreigncriminal legislation,so that to propose consummate idea for our criminal law.and letnon-penalty punishment to play important role for the judicial practice.This article contends basic theory of non-penalty punishment,the analysis of the fact ofour criminal law, the the theoretical bases of the legislative improvement of non-penaltypunishment, the consummate idea for our criminal law.This article is divided into four parts, including approximately28,000words.The first part is the overview of non-penalty punishment. Firstly,this part analizes severalrepresentative concepts of non-penalty punishment and accepts the concept that non-penaltypunishment is a kind of substantial punishment used to offenders who avert penalty by thePeople’s Court.Secondly, it analizes the nature of the non-penalty punishment, which is oneof the ways to realize the criminal responsibility and non-penalty. Last, it analizes therelation and difference between non-penalty punishment and security measures.The second part is our criminal law’s insufficiet legislation of non-penalty punishment.The article37of our criminal law establishes non-penalty punishment, including measures ofcompensation,education and administration punishment. In particular,there are sermon,ordering to sign a statement of repentance, extending a formal apology, compensating for thedamage, administrative penalty and disciplinary sanction.At present,our country criminal lawhas many shortcomings on non-penalty punishment, mainly for the following respects: Firstly,the applicable condition is indefinite,lacking of the contents of the quantity.That results thatit is hard to grasp the standard of non-penalty punishment in judicial substantialpractice.Secondly, the legal provision is lack of operability. There is not specific stipulationon way, content and procedure of the non-penalty punishment,resulting in the confusion on operating.Thirdly, the punishment types is limited. Our criminal law only establishes six kinds of non-penalty punishment. With the development of economics and society and the diversification of the crime type, existing non-penalty punishment is not able to to meet the needs of compensating the victim and anticrime.Last,the objects is limited.According to our criminal law, non-penalty punishment is merely used to natural person,and not to corporation,resulting in inclusive punishment on unit crimes.The third part is the theoretical ground of the legislative improvement of non-penalty punishment. Firstly, the improvement of non-penalty punishment is the need of the modesty principle. Non-penalty punishment, with the characteristic of moderation and thrifty, reflects modesty principle. Secondly, the improvement of non-penalty punishment is the inevitable course of dependalization. Dependalization is one of the trends of the worid criminal law reform in our times,to which non-penalty punishment is essential.Thirdly, the improvement of non-penalty punishment is the request to implement the policy of severity tempered with gentleness, non-penalty punishment reflects the gentleness of that policy.Last, the improvement of non-penalty punishment,the tenet of which is to educate and reform offenders, is the request to realize the humanism value.The fourth part is the suggestion of the legislative improvement of non-penalty punishment, including the following four aspect. Firstly, clear and definite the condition of non-penalty punishment:minor crimes, averting penalty and the need to implement other proper punishment. Secondly, perfect the form, content and procedure of the six messures that our criminal law has set. Thirdly, increase more messures of non-penalty punishment,such as welldoing promise, labor indemnity, remedy order, undertake treatment within a prescribed limit of time, disqualification and community service,to meet the needs of victim compensation, offenders reform and anticrime.Last, enlarge the unit as the object of non-penalty punishment and increase some messures to units take example by foreign countries.