A Study Of Injunctions To Convicts Sentenced To Public Surveillance Or Probation

According to Amendment (VIII) to the Criminal Law of the People’s Republic of Chinaand Notice of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministryof Public Security and the Ministry of Justice on Issuing the Provisions on the Relevant Issuesconcerning the Application of Injunctions to Convicts Sentenced to Public Surveillance orProbation (for Trial Implementation), an injunction in the Criminal Law of the People’sRepublic of China is a non-punitive treatment measure that “where the people’s court deems itnecessary to prohibit a convict sentenced to public surveillance or probation from engaging ina certain activity, entering a certain area or place or contacting a certain person during theperiod of public surveillance or probation according to the crime committed as required bypromoting the education and correction of the convict and effectively maintaining the socialorder.” The people’s court shall announce an injunction which shall be executed by thecommunity correction organs under the guidance and administration of the justiceadministrative organ while the people’s procuratorate will be overseen. Injunctions not onlycan effectively strengthen the regulatory control of the convict sentenced to publicsurveillance or probation and promote the education and correction of the convict, but alsocan effectively protect the safety of victims, witnesses and so on of other related people whilemaintaining the social order effectively. However, since the injunction system was born morethan one year, regardless of the theoretical circles or practitioners there is a lot of confusionon the application of the injunction, that is to say the injunction has been applied to chaos.This helpless feeling of chaos limits the practical application of the injunction in theadministration of justice, and causes the value of the system hard to achieve.I mainly apply the comparative law research, empirical analysis, the exploration of thelegislative intent of the law as well as interdisciplinary research and other methods to thisdissertation. The whole dissertation is divided into four chapters. This four chapters in thespecific application is successively relationship, but for the purposes of this article, it wasmainly parallel relationship.The first chapter focuses on the legal nature problem of the injunction system. It is important to make the determination of the legal nature of the system, whether it is for aninjunction to make the applicable conditions clear, to determinate the specific content or toimprove the injunction execution path. First I discussed the unity of the legal nature of theinjunction system from perspective of philosophy that nature of everything is always unity,followed by refuting the regulatory measures innovation theory and complementaryobligations theory, and then compared the injunction system with foreign security measuressystem. In my opinion, from reality the injunction system is just a specific regulatorymeasures innovation to convicts sentenced to public surveillance or probation. But fromnatural perspective, the injunction system should be security measures nature, although it is ina temporary stage of transition now.The second chapter is trying to solve the problem whether to announce an injunction ornot, in other words, what the applicable conditions for an injunction are. In this chapter, I triedto discuss crime and punishment conditions, personal dangerousness elements, social barrierselements, the principle of legality, the principle of purpose, the principle of necessity, theprinciple of ethical admissibility and so on. Among these conditions, crime and punishmentconditions, personal dangerousness elements, social barriers elements and the principle ofnecessity are much more important than others, therefore they are worthy of more attentionand more careful consideration.The third chapter is trying to solve the problem what the content of injunctions is. Firstly,this chapter discussed the four principles to decide the specific content of injunctions andpointed out that the principle of relevance, the principle of feasibility as well as the principleof equivalence is much more important than others. Then, I explored specifically identifiedstandards of injunctions prohibited from engaging in certain activities, prohibited fromentering a specific area or place and prohibited from contacting with specific person and alsoother specific problems which will be encountered in judicial practice.From the point of view of the specific execution path, the fourth chapter is mainly todiscuss the improvement of the injunction system. Firstly, on the basis of the empiricalinvestigation, this chapter pointed out that the troubles in the application of injunctions arelow rate of application, applying to non-standard as well as the ineffective problem. After thatI found four levels of reasons from prospective of legislative, judicial, executive and social foundation’s prospective. Then, from both directions of the main system and collaborationsystem, I investigate the improvement of the injunction system specifically. Finally, I alsopointed out that in the current context, we should not only focus on the improvement of socialmeans of defense, but also should pay more attention to the humanitarian care to the offenderwhich is most likely to be ignored.