Research On The Convergence Of Criminal Penalty And Administrative Punishment Since The System Of Reeducation Through Labor Been Abolished

As a legal system with Chinese characteristics, since it was established in 1957, the reeducation through labor has played irreplaceable positive role in maintaining public security, stabilizing social order, preventing and reducing crimes, educating, reforming and saving a lot of minor criminals. However, we must clearly see that, with the development of politics, economy and culture in China, especially the establishment of ruling the country by law, increasing emphasis on human rights protection in the constitution and presentation of people-oriented scientific outlook on development, the reeducation through labor obviously cannot adapt to the requirements of social development. Moreover, it has obviously lagged behind the requirements of times in many aspects. There are so many problems. Thus, on Dec. 28 th, 2013, NPC Standing Committee passed the resolution to abolish the system of reeducation through labor, which has lasted for nearly 60 years in New China. The system was officially abolished, which has great impact on China’s structure of punishing illegal criminal activities, from the original ternary structure to dual structure.Although the system of reeducation through labor has already been abolished, the remaining issues are still quite complicated to be resolved. Some scholars consider that, after the abolishment of the reeducation through labor, relevant departments need to publish supporting measures for converging system. There are various opinions, such as, judicial authorities need to announce corresponding judicial explanations and solve the punishments of minor criminal activities; based on China Public Order Management and Punishment Law, administrative law enforcement organs need to solve the problem of public securities; judicial administrative organs need to accelerate the community correction system and then solve the transitional issues after abolishing the reeducation through labor. Some scholars also consider that, there is no need to break through the current legal system, especially the punishment system of criminal penalty. This paper advocates that, after the abolishment of the reeducation through labor, countermeasures should be adopted to converge the criminal penalty with the administrative punishment. Through converging the criminal penalty with the administrative punishment in the aspect of legislation and judiciary, it makes the criminal penalty and administrative punishment to form a coordinated system, which can effectively fill in the blank after abolishing the system of reeducation through labor.First of all, the legislative connection. Firstly, it should make local amendment in the substantive laws of legal sanction, eliminate part of behaviors that do not have substantial social harms or are necessary to punish, make abnormal offenders to be punished administratively, incorporate normal offenders into the scope of criminal sanction, and also modify China Public Order Management and Punishment Law. Secondly, it should reduce the incrimination threshold of criminal legislation in China. That’s because the qualitative and quantitative legislative mode in China determines the incrimination threshold is comparatively high. Many serious illegal activities cannot be incorporated into the regulating scope of Criminal Law of the People’s Republic of China. Under such a circumstance, by properly lower the criminal threshold, it should incorporate administrative detention into the judicial track when conditions are ripe, incorporate some objects of reeducation through labor into the regulatory scope of Criminal Law and incorporate normal offenders into the criminal sanction system, which can effectively fill in the blank after abolishment of reeducation through labor. Meanwhile, it will not result in the sharp expansion of the criminal circle. Undoubtedly, it is more reasonable and feasible.Secondly, the judicial connection. First of all, it should expand the application scope of criminal penalty and administrative punishment. For instance, apply the administrative punishment to behaviors possessing quite great harm. We can adopt the method of “minor crime into punishment”, namely to incorporate behaviors having great social harmfulness among the reeducation through labor into the criminal penalty system. Meanwhile, as those behaviors having quite small harmfulness, the punishments of actors should be divided into the field of public security punishment. Administrative penalties for public security measures, including warning, fine and administrative detention, are applicable to these behaviors. By administrative punishments with little seriousness, it can prevent the expansion of behavior harmfulness. Secondly, adjust the judicial application, which means, after the abolishment of the reeducation through labor, the judicial organs should give full play to its role, specifically as follows: establish the coordinated system between the judicial organ and administrative organization for law enforcement, play the enforcement of judicial power, adjust the judicial application scope, abide by the principle of priority of criminal penalty while both administrative punishment and criminal penalty coexist, optimize the converging mechanism of criminal penalty and administrative punishment, so as to let related functional departments to cooperate with each other.How will the legal punishment system change after the abolishment of reeducation through labor? It has become a hot topic. Of which, the opinion of “Illegal Behavior Education Remedy” has been mostly supported considers that, it can set up the “Illegal Behavior Education Remedy”, on one hand, it should reserve and play the reasonable parts of the reeducation through labor; on the other hand, it can refer to the “benevolence assurance” overseas. By the way of paying for deposit and being guaranteed by the guarantor, under the circumstance of not restricting the personal freedom, related national organs, social communities or voluntary organizations supervise, educate and remold criminals. However, as a matter of fact, Illegal Behavior Education Remedy has overlapped the China Public Order Management and Punishment Law. There are no fundamental changes of the original legal system. It is difficult to replace the abolishment of reeducation through labor by the Illegal Behavior Education Remedy.