A Study On The System Of House And Rehabilitate

The system of house and rehabilitate is based on the Section4of Article17in Chinesecriminal law, which refers to a kind of compulsory education, protection and rectificationmeasures aimed at those juvenile offenders who implement the crime while free of criminalpunishment under sixteen when necessary. Considering the nature of house and rehabilitate, toclassify it as one kind of protective disciplinary measures is appropriate. The formation anddevelopment of house and rehabilitate have its intrinsic theory foundation, for related criminalpolices and penalty thought as well as the Parens patriae theory laid its legitimacy andrationality. Moreover, the study on related legislation of those countries where juvenile lawsare much more advanced, such as Japan and the United States, provides us beneficialreferences to reform and perfect the system of house and rehabilitate in China. Our system ofhouse and rehabilitate has problems in three aspects: legislation, examination and approvalprocedures and execution, seriously affecting its efficiency and effect. Therefore in this paper,the author will put forward corresponding solutions.Besides introduction and epilogue, this article is divided into the following five parts:Part one, overview of house and rehabilitate. The historical origin of house andrehabilitate is traced and the main legal ground of house and rehabilitate in China is pointedout. After putting forward the concept of house and rehabilitate, the author makes apreliminary definition of applicable object and condition of house and rehabilitate, and thenintroduces the legislation evolution of it. Finally, the author defines the nature of house andrehabilitate and denies several representative views through detailed analysis.Part two, The theory foundation in the formation and development of house andrehabilitate is carefully argued. The author expounds the bases of criminal policy, penaltythought and the Parens patriae theory. Finally, the author points out the rationality of existingand the irrationality of operation in our system of house and rehabilitate. The author opposesthe abolition of house and rehabilitate, while insist on the reform and perfection of it, in order to better play the good functions and positive roles of the system itself.Part three, investigation and study on the related legislation of house and rehabilitatefrom outside of mainland. The author introduces the protective disciplinary measures of Japanin detail, as an example of Civil Law System countries, while introduces placement outsidethe home and incarceration in a state training school of the United States, as an example ofCommon Law System countries. Then related legislations of Hong Kong, Macao and Taiwanare introduced pertinently. The end of this part makes a summary and comment on the laws ofthe countries (regions) of the above.Part four, comprehensive review of the problems in the operation of house andrehabilitate. The shortcomings of legislation, procedure and implementation of house andrehabilitate is specified. To be specific, on legislation level, the legal ground is inadequate, thelegislative idea is unreasonable and the legislative technology is not mature; on theexamination and approval procedures level, the public security organs have too much power,not only investigate cases alone, but also the power of approval and decision, while there is noeffective remedies for those who are decided for house and rehabilitate; on the execution level,the executive mode of house and rehabilitate is too single, the execution places are closed andchaos, the execution time is long and inflexible. Furthermore, the follow-up work after houseand rehabilitate is faulty, which is not conducive to the young returning to society.Part five, corresponding solutions against those existing problems are put forward. Firstly,build reasonable legislative model. Secondly, establish some basic principles in order to guidethe application of house and rehabilitate, and in certain circumstances, to make up for the lackof legal norms. Thirdly, perfect related substantive norms, such as defining the nature ofhouse and rehabilitate reasonably, and make a clear definition of applicable object, conditionand time of house and rehabilitate. Fourthly, perfect the procedural norms, for example, as forthe case of house and rehabilitate, the public security organs shall be responsible forinvestigation and preliminary review and identification, while the power of decision belongsto the people’s court. Finally, improve the execution system, for example, set up the faculty ofhouse and rehabilitate, perfect the executive mode, perfect the follow-up education and safeguard measures, etc.