Study On Criminal Reconciliation System In China

Human rights have been confirmed in the law form by PRC Constitution, and theprotection of human rights, which show the principle of rule of law, is the core valuetarget of modern criminal law. As for criminal judicial practices, how to the utmost tobalance victims’ interest protection and criminals’ restoration is the specificrequirement of human rights protection and major challenge faced by every country inthe criminal practices field. The goal of criminal reconciliation system studied in thisessay is to justify the theoretical legitimacy and practical feasibility, to realizecriminal reconciliation legislation and achieve the aforesaid goals balanced. It is truethat, the study of criminal reconciliation system in the criminal practices goes into astable stage and has got stage theoretical and practical achievements. However, it isfound that, it is the lack of specific legislation of the role of criminal reconciliationsystem and legislative substantial basis thereof that hamper achieve the aim ofcriminal integration. At the same time, the amended criminal procedure legislationand relevant judicial explanation have clear and specific provisions with respect to theapplication、terms and conditions、procedure and legal effect which provide clear basisfor the application of the criminal reconciliation systems, but the scientificity andrationality has to be examined in the practice and partial provisions has to becorrected. The thesis aims to establish the criminal reconciliation legislation, employsliterature research method, historical research method, comparison research methodand so on, and forms a preliminary idea of setting up criminal reconciliation system in our country.Apart from introduction and conclusion, there are four sections in this paper asfollows:The first section is the overview of criminal reconciliation system. It introducesthe main idea and recent study of criminal reconciliation system from three aspects:the definition, origin and theoretical basis. We further specify the concreteconnotation by introducing the definition of criminal reconciliation onshore andoffshore and differentiating it with civil settlement. From the historical perspective,the essay shows the embryonic stage or imperfection of criminal reconciliation duringthe whole human evolution and the necessity of world criminal reconciliationimprovement. From legal, economic, political perspective, criminal reconciliationsystem shows its theoretical foundation is individual-based criminal, the restoration ofjustice, contract spirit, and participatory democracy and it reflect in-depth its inherentvalue of criminal reconciliationThe second section is the legitimacy analysis of criminal reconciliationconstruction. This section analyses the legitimacy from the perspectives of theoreticallegitimacy and practical feasibility. From the theoretical legitimacy perspective, itjustifies that criminal reconciliation system is a necessity of harmonious society,criminal value targets-justice, modesty and restraint, humanity and rationally respondto the challenge of criminal reconciliation legitimacy by verifying its coordinationwith these criminal principles, such as the inherent nature of crime, statutory crimeand penalty, equal application, Die Strafe entspricht der Straftat. From the practicalfeasibility perspective, it shows the social condition of criminal reconciliationconstruction, at the meantime, it points out the practical obstruction of the legislationand practice of criminal reconciliation with the aim of local support of criminalreconciliation legislation.The third section is the institutional factors of criminal reconciliation. It exploresthe necessary institutional factors, including basic principles, applicable condition,scope, stage and mode, participators, reconciliation agreements and supervisionmechanism. The theoretical exploration of criminal reconciliation forms the basis of systematic construction. The principles of criminal reconciliation are equality and freewill, legitimacy. Judicial confirmation, victim-protection-centered, due process. As tothe applicable scope, it makes its restraints from the applicable target, case range,penalty conditions, and shows that whether public interest encroachment is not theonly reason for criminal reconciliation, felony case can also be applied. It providesspecific conditions for the applicable conditions from subjective and objective.Criminal reconciliation should be used in every criminal legislative stage from filing acase to the execution and the participator should be broad. With respect to applicablemode, the first priority should be given to the mixed mode as localized reconciliationmode. As for criminal reconciliation agreement, it specifies the contract content, legaleffect, and the impact of going back on the words. It should establish and improve thesupervision mechanism from rights restriction, execution supervision and mediasupervision.The fourth section is china-style construction of criminal reconciliation. Theessay shows the legislative construction and improvement of criminal reconciliationand supporting measures to localize the legislation. With respect to its systemconstruction and improvement, criminal reconciliation should be constructed fromcriminal law and criminal procedure law. Besides, it is advised that general principlesshould be added in General Provision of Criminal Law and related provisions shouldbe contained in conviction and sentencing, punishment execution, death restrictionand so on; on the basis of chapter3, improvement opinions with respect to theamended criminal procedure law and relevant judicial explanation are provide. As forthe practical supporting measures, it is advised that, on the basis of system mode andpractice in western countries, to perfect specific application of criminal reconciliation,the supporting measures include criminal personality investigation, victims’ economicremedy and mediation organization construction and so on.