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The Research Of Criminal Prohibition System In China

Posted on:2013-07-25Degree:MasterType:Thesis
Country:ChinaCandidate:Y X ShangFull Text:PDF
GTID:2266330422454101Subject:Law
Abstract/Summary:PDF Full Text Request
The continuous development of human society history, from heavy punishmentto the mitigation of penalty is an inevitable law of the development of humancivilization. Control and probation are two kinds of non-custodial penalty, which isthe embodiment of the mitigation of punishment. However, the mitigation of control,probation in practice met no punishment predicament, out of China’s criminal policyof combining punishment with leniency. In view of this malpractice, the " PRCCriminal Law Amendment (eight)" issued a criminal prohibition that according tothe circumstances of the crime, to public surveillance or probation of offenders, thepeople’s court may prohibit them being involved in a particular activity, entering intoa specific region, place, being exposure to a particular person during the period ofexecution or the test’s period.The criminal prohibition of punishment is significant institutional innovation,which has the profound novelty. As a new system of socialist legal system, alongwith the continuous progress of the process, how to realize the purpose of legislationin practice is the major task that we face. This article is a theoretical analysis modelpaper, mainly from the perspective of annotation criminal law exploring criminalprohibition system.Study of a system, the primary mission is to know the qualitative. On the natureof law, there are different views in theory: a kind of viewpoint thinks that thecriminal prohibition is attached to the control penalty punishment or probation, sothat the ban for the penalty system is innovation, but it is not an independent systemof punishment. The criminal prohibition order can only be characterized as control,probation execution conditions; A view that the core point of the criminal prohibitionto be applied is the personal danger of the probation and control, which is thefoothold for the security measures, so the criminal prohibition order can becharacterized as " Oriental security punishment "; There is a view that regardless of specific activities, the specific area, place, or to prohibit being access to a specificperson, its essence is the control of criminal behavior ability, conforming with thewestern developed qualifications punishment. From the criminal prohibitionlegislation purpose, applicable condition, solid content, ban does match the Westernsecurity punishment, punishment system, but there is no security measures system inour current criminal law system and in the theory of criminal law.at the same timethe ban did not become independent qualification penalty reprieve. Therefore, to becharacterized as a security measure or qualification penalty is wrong. Throughanalysis the relationship between criminal prohibition order and security measures,qualification penalty, community correction, combining with our existing criminallaw theory system, deriving from the present criminal law system, I think the natureof criminal prohibition laws is control additional execution conditions, additionaltest content to the probation.As a legal system, the criminal prohibition is composed of legal entity, procedure,legal consequence. The concept of legal entity and the procedure is form theutilitarian founder Bentham, he advocated that the entity is the rights and obligationsof the content and the procedure is for the protection of solid content. According totheir view, the criminal prohibition system entity content should be made ofdeprivation of probation certain rights deprivation, statutory obligations, whichprohibits control and probation being involved in a particular activity, entering into aspecific region, place, being exposure to a particular person.In order to protect thecriminal prohibition to play legislative purpose, criminal prohibition programcontent should be included the injunction filed, applicable, execution, the end. Thecriminal prohibition mentioned in this article refers that according to the actualsituation, the procurator may accused criminals to surveillance, probation withdeclaring ban proposal; parties, defenders agents and agents can advocate judge toapply the ban and explain the reason; According to the criminal suspected case,when the public security organs is for examination and prosecution, it should declare opinion to the procurator to explain to sentence a ban or not. The applicableprocedure of criminal prohibition is that judges how to sentence a ban. The criminalprohibition enforcement procedures are that the executive Officer is how toimplement bans." Acts cannot work by itself ", execution play an important role inoperation. The legal consequences include positive consequences and negativeconsequences. Positive consequences, namely the ban period expired, the criminalsare no longer obey the injunction provisions; negative legal consequences, namelycriminals violating the legal sanction content. I think that whether it is positive ornegative legal consequences, legal consequences have occurred in theimplementation stage, therefore, the injunction legal consequences belong toexecution of the program. Given the negative legal consequences is more complex,needed to be discussed. In the style of harmonious, negative legal consequences isparallel with executive program, singly into a directory.Finally, criminal prohibition as a new system, there are some problems inlegislation and in practice. Based on this, the parole should be included intoinjunction application scope and we should build perfect practice mode of operation.
Keywords/Search Tags:criminal prohibition, legal analysis, solid content, procedure, legislativeproposals
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