The Thought Of The Wartime Probation System Perfection In China

We have always born in mind that a scientific and complete military judicial system is not only the guarantee of fighting and winning in the battle, but also the basis of implementing battle effectiveness. After years of exploration, China’s military judicial system is more and more perfect. With the requirements of closely integrating in the new period and new situation for military preparation, we creatively develop a series of military judicial system, such as wartime probation system which is representative. It is regulated in the 449 th article of "criminal law" that soldiers who meet the regulations of wartime probation system in our country, must have a military meritorious service, so that they are able to be canceled from punishment of original sentences and decriminalized. "During the wartime, the criminal soldiers who are sentenced to fixed-term imprisonment for less than three years, without real dangers and pronounced probation are allowed to offset the guilt by merit. They are able to be canceled from punishment of original sentences and decriminalized. The system of allowing criminal soldiers to offset the guilt by merit in wartime already exists in foreign military history. The wartime probation system is actually the one to offset the guilt by merit, which is independent of the common probation system. In the wartime, the military judicial power of the system should be in the charge of military officers instead of military judicial organs.The wartime probation system has its specialty.In the element of time,it should be in state of wartime.In the element of object,it should be the solders sentenced to fixed-term imprisonment of not more than three years.In the aspect of procedure,it is requested that the applicable objects must be “suspended”.On the substantial requirements,the objects should be the ones without substantial risk.In the aspect of inspection content,it is mainly inspected that whether the applicable objects in wartime have military “meritorious service”.When in the element of legal consequence, the objects can disaffirm the punishment which is originally sentenced as long as those soldiers are sure to fight.In the perspective of criminal law, the wartime probation system in our country remains to be further perfected. In the aspect of time, the time span of "state of war" also need to be further defined. Tasks of maintaining stability and security, including martial law and anti-terrorism task), doing rescue and relief work and dealing with emergency could be included in the "state of war". In the aspect of object, it is not clear whether the recidivist and the soldier who was sentenced to criminal detention should follow the wartime probation system. It is still not clear on the regulation about the other soldiers who are executing military mission. In the aspect of procedure, whether there is a need to make a pronouncement or not is changeable according to different situations. On the substantial requirements, the understanding of dangers in reality can be further subdivided. In the aspect of inspection content, the rights and obligations of the applicable objects are still unclear, and the standard of "meritorious service" needs to be further defined. The conflict on the standard of “merits” stipulated in “criminal law " and " the people’s liberation army discipline regulations” could be solved by the content of article 451 of the criminal law. In the aspect of legal consequences, the situation of criminal army man committing new crimes and omitting crimes are not clear. It is also true for the non-reactive soldiers and the criminal army man sentenced to accessory penalties.With the vision of economy, the wartime probation system in our country is actually a process of “exchange” and has a strong economic quality. From the contents of the article 449 of the criminal law, there is no need to distinguish the different wartime situations. In fact, the wartime situation is always changing. The country’s need of criminal soldiers joining battles and the will of them to fit into this system are also changeable with the situation of the war. However, the method of dealing with these different situations, which can lead to various legal consequences, is all the same. That means regardless the intensity of war and the degree of risks, only the criminal soldiers who have a meritorious performance can they get the legal consequence of disaffirming the punishment which is originally sentenced as long as they are sure to fight. This may make it less practicable in the judicial practice. Thus, there is still more things to do for its perfection.In conclusion, "criminal law" the 449 th, can be further supplied with the provisions: " If the military authorities do need criminal soldiers to fight in the emergency wartime situation, they can disaffirm the punishment which is originally sentenced as long as those soldiers are sure to fight and fulfill their responsibilities seriously, no matter whether there is meritorious service, they will be canceled from punishment of original sentences and decriminalized. When the military authorities do need criminal soldiers to fight in the emergency wartime situation, soldiers who refuse to fight after invalid persuasion and cause serious circumstances will be seen a criminal of in wartime defying command. They will be punished according to “criminal law " article 421 of our country which regulates the situation of the crime of in wartime defying command and there would be a joinder of punishment for plural crimes. When the military authorities think the situation is relatively moderate, they can disaffirm the punishment which is originally sentenced according to the wartime probation system as long as those soldiers are sure to fight and fulfill their responsibilities seriously, no matter whether there is meritorious service. They will be canceled from punishment of original sentences but won’t be decriminalized. This law can also apply to other circumstances. That is to say, soldiers who meet the regulations of wartime probation system in our country must have a military meritorious service, so that they are able to be canceled from punishment of original sentences and decriminalized. In addition, under special circumstances, criminal soldiers who meet the system will be dealt with regardless of whether there is meritorious service in wartime probation system or not. The final result will be decided by relevant department of forces in comprehensive consideration of the rewards and punishments measures to solve the special circumstances.