Discussion On The Improvement Of Punishment On Omitted Crimes

As for the said issues, the author starts from a case with suspension of execution, makesmore extreme supposition on the case, amplifies the problems and proposes that the currentcriminal law provides that the system that after the omitted crimes are detected, norecognition on the commutation of the former crime in the execution period, the commutationfrom the former crime shall not be recognized during the execution of the former crime is notreasonable under some circumstances, which may cause the occurrence of obviouslyunreasonable and overlong term of imprisonment. In the meantime the author develops thethought based on this, assumes four relatively extreme cases with the method of inferringother things from one fact, and analyzes the unreasonable circumstance of the provisions inthe current criminal law on the omitted crimes under some special circumstances. The currentprovisions in China on the system for omitted crimes consist of Articles70,77and79as wellas several directory documents promulgated by the Supreme People’s Court, forming severalpunishment principles for omitted crimes, including the principle of subtraction after addition,the term of imprisonment executed shall be deducted from the term decided in the newjudgment, the new judgment does not recognize the commutation from the former crime, andwhether the omitted and the former crime belongs to the crime with the same nature, thecriminal shall be punished for several crimes. In the judicial practice within many years, thejudicial organs strictly implement the above laws and documents, unifying judicial means andjustice scale in a better manner; however, the current system for omitted crimes are not soundenough without no defects, which is only prominent under some extreme circumstances notunder most circumstances. Instance one, where the defendant who is sentenced to deathpenalty a two-year suspension of execution is found of omitted crimes after he has gonethrough the death sentence with a suspension of execution and has executed many years’penalty, causing the repeated initiation of the period of suspension of execution and theinvalidity of the former term of imprisonment in the fact, resulting in really executed overlongterm of imprisonment. Instance two, similarly, no recognition on the commutation of theformer crime in the execution period kills the offender’s efforts in active reform and strivingfor commutation, which is very easy to cause the criminal psychological imbalance, notconducive to the transformation of criminals. Instance three, whether the omitted and theformer crime belongs to the crime with the same nature, the criminal shall be punished forseveral crimes, which may cause that the criminal whose former crime and the omitted crime belong to the crime with the same nature and who commits the same offenses with the samecharge is sentenced abnormally lightly or heavily with the criterion for imposing penaltybroken through owing to different trial procedures. At the same time, the current criminal lawonly has provisions on the treatment on the omitted crimes detected during the period ofsuspension of execution, without definite provisions on whether the suspension of executionshall be withdrawn where the omitted crimes are detected during the suspension of executionand different opinions in the theoretical circle, which possibly brings the disunity in thejudicial operation. First, from the perspective of the criminal theory, the provisions in thecurrent criminal law on the omitted crimes may violate the principle of legality and theprinciple that the punishment should meet with the crime and responsibility under somespecial circumstances; second, from the perspective of the procedural law, the directorydocuments of the Supreme People’s Court have no right to essentially deny commutationgained by the criminals; at the same time according to the universal principle of selfcrimination, the author deduces that the failure to confess all crimes is not a reason foroverthrowing the commutation gained by the criminal. Third, from the perspective of thepunishment theory, the system for omitted crimes may cause obviously unreasonable term ofimprisonment under special conditions, which attacks the criminal’s confidence intransformation, not conducive to the transformation. Upon the analysis on the imperfection ofprovisions in the current criminal law on the omitted crimes, the author defines the thoughtsfor the improvement of the provisions in the current criminal law on the omitted crimesaccording to the principles of the criminal law and the purposes and functions of thepunishment, including no repeated initiation of the period of suspension of execution owing tothe occurrence of omitted crimes; the commutation from the former crime shall be reflected inthe new decision; whether the criminal shall be punished for several crimes shall bedistinguished according to the actualities, unable to punish the criminal with several crimesgenerally; the suspension of execution may not be withdrawn upon the detection of omittedcrimes after the suspension of execution expires, nor may the criminal be punished withseveral crimes; according to the said thoughts, the author proposes the policies to furtherimprove the system for omitted crimes in China through amending Article70of the CriminalLaw and abolishing partial directory documents not meeting the needs.