Defects And Perfection Of China’s Probation System

Probation refers to the very kind of transformation system where offenders whobreak the criminal rules will not perform the sentence under some certaincircumstance, i.e. receiving community transformation. Probation can overcome thedrawbacks of the free exercise to help offenders better integrate into society and playa penalty in general effects and specific effects. Theoretically, probation system inChina is divided into put to death suspended for two years probation system,enforcement regime wartime probation system and ordinary probation system.Ordinary probation system refers to the suspension of the execution of sentences ofoffenders after certain provisions of the test period, who was sentenced to criminaldetention or less than three years in prison for criminals, according to thecircumstances of the crime and show repentance, which reflects no further harm tosociety. According to the Criminal Law Amendment (eight),for the requirement ofordinary probation system,the provisions of conditions of probation were modified,then the Supreme Court, the Supreme People’s Procuratorate, Ministry of PublicSecurity, the Ministry of Justice have jointly issued the "Implementation Measuresof Community Correction" which prescribes how to perform the procedures andmakes rules and regulations for probation. Found in the actual implementationprocess, laws and regulations are too vague, associated procedures are too simple tobring about a series of questions. First, speaking of probation execution, the people’scourt adjudicates probation casually, under no effective supervision. Second, on how to identify the offender meets the provisions of Article72of the Criminal Lawwhich says "probation might cause a material adverse impact on the community",the existing system asks more for systemic requirements and standards, meanwhileassessments issued by the judicial process seems to be too simple, which cannotreflect the whole picture of perpetrators living in the community; lacking the properlegal status and legal effect, the judicial, RC and other opinions issued by thedepartment tend to be ignored by the court. Judgment on whether the offenderprobation is related to civil rights,and it is consistent with the principles of criminallaw offenses. The procedural and substantive requirements of the standard should beimproved. While determining the situation that "probation might be interested incommunities significant adverse effects ", relevant information on probation of theperpetrators should be published in the community, seeking to gather the views oflocal residents. Under the circumstance, if a certain number of local residents, or to acertain percentage of residents hold the opposite opinion, it can be considered assignificant adverse that the people’s court shall not apply probation to theoffender.The way of publishing information,from certainperspective, should have played the social effect of probation by providing for localresidents a platform of supervision of offenders. Again in the implementation ofprobation, the system is not strict, the lack of effective supervision results in a defacto community sentence the offender criminal acts do not occur as long as theequivalent of the release, and it is difficult to truly implement community laboraccording to the rule of law. Finally, the probation system in the probationrevocation, probation and other issues of minors also needs appropriateimprovements.