| In criminal law, deportation refers to expulsion of a foreigner who hascommitted a crime from the territory of China. Enforcement is reflected in deportationand “territory” shall be understood as borders of Chinese mainland. The essence ofdeportation is to deprive the foreigners of their right of residence in China.Deportation in criminal law is easily to be confused with the concept of expulsion inadministrative law. However, there are differences between them in six factors, e.g.legal ground, range of application, reason of application, decision maker, applicableprocedure and legal remedy. In the Chinese system of criminal penalty, deportation isa punishment against qualifications as well as an accessorypunishment.According to the provisions of Article35of the Criminal Law,“deportation canbe applied independently or as an accessory punishment to foreign criminals”.However, laws and regulations as well as judicial interpretation on deportation as acriminal punishment are insufficient. In summary, the following defects could befound on criminal deportation system: undefined applicable objects, vague range ofapplication, uncertain application conditions and insufficient human right protectionin entity; unclear application period, opaque executive routine, indeterminateexecution time limit and improper relief and protection in procedure.Aiming at these defects, it is proposed to improve the criminal deportationsystem in the following aspects: in entity, the applicable objects shall be defined,range of application shall be divided, way of application shall be determined andcontents of human right protection shall be completed; while in procedure, applicationperiod shall be regulated, executive routine shall be confirmed, execution time limitshall be decided and relief and protection measures shall be added. In this way, highermaneuverability of criminal deportation system can be achieved in judicial practice.Therefore, it can be put into better use for social management work. |
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