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Commutation, Parole Supervision Mechanism Of Attorney

Posted on:2016-02-28Degree:MasterType:Thesis
Country:ChinaCandidate:J ZhangFull Text:PDF
GTID:2296330479987964Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Commutation and parole are the important part of the criminal execution, referring to the change the way to make the execution of punishment which made by the people’s count. It stems from criminal advocate for education, reflecting the punishment of human design. Commutation, parole system only if used properly can save judicial resources, but also stable regulatory order to mobilize the enthusiasm of the offender, whereas breed of judicial injustice and corruption. In practice, caused by bartering that improper commutation, parole are not uncommon, the highly anticipated "Error commutation case of Foshan Zhang" pull out the false meritorious commuted. In the case, because of embezzlement and misappropriation of funds, zhang was sentenced to 15 years. But he was released from prison after six years in prison, the reason behind the commutation program are "bartering" and "favoritism", raising questions of justice from social, and do serious damage to the law enforcement authority and credibility of the judiciary. To suppress the adverse effect of improper commutation, parole, it must be a valid legal supervision, prosecutors have the legal responsibility.Before the “Code of criminal procedure" issued in 2012, the prosecutors supervised commutation, parole only propose the corrective opinions to the count, they intervene too late lead to poor effects. As China’s judicial process, the supervision gradually being taken seriously. In practice and in theory, the supervision has a gradual shift from "a single post-supervision mode" to "full sync supervision mode." At the same time in 2012, "Criminal Procedure Law" Article 255, Article 256 and Article 262, paragraph 2 and 263 established the commutation, parole full supervision mechanism, clearing the prison authorities to ask the court the same time shall sent the prosecutors the commutation and parole Recommendations. Then Supreme People’s prosecutors issued "People’s Prosecutors commutation, parole cases require" in 2014, clearing the type of hearing cases of commutation, parole cases, stimulating the prosecutors should participate in the commutation and parole cases. Supreme Court issued "the Supreme Court on the commutation, parole case hearing," in 2014 which specified the types of cases should be hearing and required the prosecutors may dispatch court so that prosecutors involved in the commutation, parole trial court work. In addition, the CPC Central Political and Law Commission issued "on the strict norms commutation, parole, temporary probation, and to prevent judicial corruption opinions", the Ministry of Justice in conjunction with the three departments(Supreme Court, Supreme Prosecutors, Ministry of Public Security) jointly issued "temporary execution outside prison regulations", so prosecutors supervise deeply in commutation, parole cases at all stages of the program.At this stage, the prosecutors supervise commutation, parole for : 1. in advance stage, enforcement authorities need to copy the commutation, parole recommendations and other materials to prosecutors, including the enforcement authorities intend to draw commutation, parole opinions; evidence for Repentance, meritorious; final judgment, criminal enforcement notice; Previous commutation ruling; others should review materials. For position crimes cases, the prosecutors may get the information by hold a forum or re-identified, etc. 2, in the matter of supervision, according to "commutation, parole cases provisions" and "temporary execution outside prison regulations", the prosecutors in the people’s court hearing or trial commutation, parole cases, they need to sent to appear in the executive organ of a declaration under commutation, parole after proposals published prosecutorial advice. 3, in the post-supervision phase, after the prosecutors in receipt of commutation, parole decision, they shall review the court ruled that the commutation, parole time, whether it should make a commutation, parole, and the referee’s legitimacy and whether the program to the public, etc. According to the review that the decision is inappropriate, the prosecutors should submit written comments within 20 days, the people’s court should Re-form a collegial panel to do a finial decision in a month. It constitutes a prosecution for commutation, parole full synchronization supervise above, regulates in remission from the legislation of the various stages of parole supervision. In order to improve the prosecutors’ supervision work, the Supreme People’s prosecutor has issued a file, requires the prosecutors to be taken seriously remission of duty crime. The original crimes above the county level offenders should progressively higher offices reported record review. In addition, in February 2015 the Supreme People’s Prosecutors opened commutation, parole, temporary probation Information Network, the National Parole and Commutation since filing the case since the relevant legal instruments must be open on the network to protect the public’s right to information, participation and supervision at the same time, with the public Forced commutation, parole cases handled by the fair and equitable for the prosecution supervision to help.Although our governments have issued legal documents to improve commutation, parole prosecutors’ supervision, but in practice it still appears as the supervision is not deep, inadequate supervision effectiveness, the corresponding provisions of the trial link is not clear, etc. It indicates there are still flaws in the legislation and practice. In drawing session, the prosecutors are unable to penetrate the daily limit renovation activities, can not be fully understood only in the review of the prison authorities transferred on the basis of the information issued by the "Attorney opinion", and the legislation does not give the "Attorney opinion" legally binding. During the trial session, although the prosecutors may dispatch officers to appear in court, but the mode of supervision is unknown, is not yet clear whether the prosecutors can protest. At the same time, in the trail there are problems as ignoring the rights of victims, The main reason causing the problem is the lack of prosecutorial practice resources led to weak oversight of prosecutorial power configuration causes the Authority is not in-depth, hearing commutation, parole case is still exploring, the sense of protection of the rights of prisoners and victims are thin.Throughout the world, in a long legal process, some countries have gradually formed a more rational, scientific and effective system of commutation, parole supervision. The Russian model, the French model is closest to our legal system, its development path and the current model can provide valuable reference for improving value decision for commutation, parole prosecutorial Supervision in China. Russian prosecutors to assume the identity of a clear supervisor in the implementation of the supervision program, has included the right of appeal, including the supervision of a wide range of privileges, greatly enhance the effectiveness of supervision. In commutation, parole, the prosecutor can decide on some cases, for another part need the judges, the prosecutors can protest. In this mode, prosecutors and judges as well as the prosecution of persons bound by mutual supervision, supervision of non-top-down nor a single supervisory authority, avoiding a single department supervision caused by excessive powers of corruption.Draw legislative and judicial experience in Russia and France, can improve from the following aspects: First, clearing the position of our prosecutors in the commutation, parole program, emphasizing the independence of prosecutors and prosecutorial power of rigid, clearing "correct opinion" legal effectiveness, given it’s the power of protest; secondly, clearing the nature of judicial proceedings program, avoiding the disadvantages brought the administration nature of the trial; Finally, strengthening prison personnel and victims right to involved in the commutation, parole referee process, giving inmates the right to draw the process. In prefect the commutation, parole legislation, also need to improve prosecutors’ work: First, rational allocation of prosecutorial resources, to strengthen the legal supervision of the implementation phase must increase grassroots prosecutors especially prison prosecution of manpower, material resources, so that the legal supervision of the implementation phase has the basic security; second, the prosecutors should staff awareness of the correct supervision, avoiding lazy oversight; afraid of supervision and unwilling to supervise. Third, the supervise activities of the prosecutors should follow the development of the times, in the commutation, parole supervision, they can take advantage of information technology, networking enforcement to share information that enforcement authorities would inmates corresponding information in this transformation.
Keywords/Search Tags:Commutation,parole, Prosecutorial supervision, Full supervision
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