Boundaries Between Felony And Misdemeanor

In an era with criminal punishment of reeducation, we have a ternary criminal sanction system, one ispublic security punishment which applies to police administrative law violation; one more is reeducationthrough labor, serving to people who should be treated under§10of the regulation; the other is regularcriminal penalty applicable to criminal offenses. However, on Dec.28,2013, the NPC(National People’sCongress) made a decision abolishing the regulation with respect to the punishment of reeducation, whichmeans reeducation officially stepped out of stage, former ternary criminal sanction system gives way to abinary system. Therefore, making the administrative punishment seamlessly bound up together withcriminal penalty is our main task afterwards. Drawing a line between misdemeanor and felony, after all, isone way of doing with this issue. In China, felony and misdemeanor, have long been excluded from thespotlight of research until the recent development of criminal policy characterized by justice temperedmercy and the abortion of reeducation through labor. Today, many economies have already draw a clearline between felony and misdemeanor. This scientific discrimination not only indicates their high-level oflegislation, but also the spirit of respect of human right and defense of justice. Therefore we should learnfrom their advanced experience.The essay in five parts:The opening part introduces the background information of the dividing line between misdemeanorand felony. Firstly, after the abolishment of reeducation, previous ternary criminal sanction systemcollapsed, the left issue, however, cannot be ignored. In response to the issue, scholars are divided into fourprimary theories: e.g. security measure theory, illegal behavior ratification and treating as misdemeanor. Incomparison with the four theories, it is safely to conclude that drawing a clear line between misdemeanorand felony is the best to deal with such issue. Secondly, the current criminal policy of “justice temperedwith mercy” and “strike hard” illustrate the significance this criminal policy to the development of ourcriminal legislation and the democracy under the rule of law.The second part summarizes felony and misdemeanor. Distinguishing misdemeanor and felony both intheory and practice, misdemeanor is a less serious crime being treated with lower level of punishment. Instead, felony is a serious crime being served higher level of punishment. Another concept relevant tomisdemeanor is an obviously minor violation, causing no serious harm and is therefore excluded fromcrime. Police administrative law violation, however, different from above criminal law violation, should betreated under administrative regulation. Also, this part focuses on the implication such difference tocriminal legislation(regardless substance or procedure), sentencing system and criminal policy. Lookforward, the trend to draw a clear dividing line between misdemeanor and felony is irreversible in China.The third part, the legal practice from foreign countries. Many civil law and common law countriesdraw a clear line between misdemeanor and felony. Examines and analyses the provisions of felony andmisdemeanor in criminal and criminal procedural law of other economies, France, Germany, USA, UK, forexample, in pursuit to the development of criminal legislation in China.The fourth part involves the key issue. By exploring the object, standard, as well as boundary in aboveanalyzed, it is convinced that crime per se should be concerned more than the nature of crime to draw a linebetween felony and misdemeanor. In other words, the boundary lies in substance-afixed-term imprisonmentof no more than three years in law rather than the form of crime.The final part, technically talk about the legislative and procedural issue when drawing a line betweenmisdemeanor and felony. Legislatively, it is necessary to define the scope of misdemeanor and felony, thetechnical terms, e.g. unfinished crime, the limitation of crime prosecution, in general provisions of criminallaw. Based on substantial criminal law, looks at the reform and further improvement of criminal procedurallaw.Drawing a line between felony and misdemeanor in criminal legislation, not only guarantees thatcrime, in different levels, can be well regulated in pursuit to realize substantial legal justice, but also allowsjudicial work, in different legal area, be conducted in an orderly, professional, economic efficient way. Atthe same time, discriminating felony and misdemeanor in prison help to prevent cross infection, and thuscontributes to recidivism. Nevertheless, a lot of issues around the boundaries between felony andmisdemeanor to be studied. There is still a long way to promote the further understanding and improvementin this area.