Empirical Studies On The Problem Of Floating Population Applicable Probation

Developing with modern criminal legal thought, probation has become asignificant penal substitution. Its scientific application has proved to be a vital symbolof criminal legal modernization of one nation. However, the humanistic concern ofthis legal system has turned out to be an intense difference between urban and ruralareas. Specifically, local defedants are mostly sentenced to probation while thenonlocal ones, for the most part, can easily be subject to substantial punishment. Thediscrimination, due to merely the difference of census register, is not only runningcounter to the "All are eaqual under the law" principle, but also clashing with the ideaof social eaqual security system. What’s worse, instead of arousing deserved attention,the discrimination is overflowing constantly in judicial practice. This context iswritten on the basis of Taizhou, Zhejiang province. All the relevant statistics arecompared and analyzed upon the nine grass-roots courts during the recent four years.By explaining the reasons of this phenomenon and therefore figuring out some rules,the author strives to propose a specific plan of realizing the identical treatment for theprobation application.The thesis is consisted of three parts:Part one is the application status of probation, including a general description tothe application status of probation in various regions. In order to reflect the catholicity of the sentencing discrimination and reveal the relation between urban-rural disparityand economic development extent and then exhibit the overal trend of probationapplication, the author majorly chooses to compare the first-tier cities as Beijing,Shanghai and Zhejiang with second or third-tier cities as Guangdong, Fujian,Liaoning and Jiangsu. Secondly, the author analyzes the application statistics ofprobation within the nine grass-roots courts in Taizhou during recent four years,attempting to reflect the urban-rural disparity in probation applicaiton between localdefendants and nonlocal ones, and figure out the similarities and differences withother provinces and cities. Finally, by analyzing the characteristics of the probationapllication status, including its general circumstances, accusation, rules, the authorstrives to sort out the variation tendency and difference degree from place to place.Part two is an explanation to the causes of the sentencing discrimination. Theauthor puts forth effort in analysing the discrimination phenomenon from five aspects.First is the aspect of conception, specifically including falsely setting probationapplication against the Strike-hard policy, equating probation application withacquittal and chronically underestimating the value and function of probation. Secondis the aspect of legislation. Due to the failure in solving the problem of vague lawfulconditions in probation application by the Criminal Law Amendment and theomission of unequivocal judicial interpretation, there is no particular reference pointin the judicial practice. Third is the aspect of application. On account of thesimplification of repentance evaluation criteria and equivalence with economiccompensation, the threshold of probation application for nonlocal people has beengreatly improved. Forth is the aspect of supervision. The absence of subjects and blurobligation make the probation supervision unpracticable, especially not dare to applyprobation to those nonlocal ones lacking of supervision requirements. Last but notleast is the administration of justice. It is the overmuch interior examination andapproval links, absence of sentencing prepositional procedure, establishing impropercontract with criminal coercive measure and transfering judicial nonfeasance risks andso forth that lead to the unidentical treatment. Part three is an exploration of identical treatment route. The author firstly examsthe idea of severe punishment and then puts forth a proposition of carrying outsubstantiality perfection and procedure opitimization pari-passu. Secondly by drawingon the experience of foreign system of probation burden, the absence of preventionpurpose is compensated, the conflicted mood of the public and the victims towardsprobation application is relieved, furthermore providing those nonlocal who areundertaking economic difficulties with opportunities to apply probation and to examthe sincerity of probationers. Third is the widespread use of Taizhou’s particular"Sunshine Station " community correction working mode, namely sending thecriminals who are sentenced to probation to the local private enterprises to work,accept education and supervision and so on. Procedure optimization includes puttingup pretrial personality investigation program, namely investigating the defendants’character, family background, sociality, growing experience and performance beforeand after undercontrol etc. Next in importance is to set independent sentencingprepositional program. Finally is to introduce probation supplementary guaranteeprogram, specifically differentiating the defendants’ concrete circumstances toperspectively apply property guarantee or personal guarantee, so that to add actualconstraint and remove geographical obstacle for the nonlocal’s application ofprobation.