A Study On The System Of Commutation

Commutation is a system of penalty alteration execution.Compared with general penalty execution,penalty alteration execution embodies that the purpose of penalty is crime prevention,with the important meaning of correcting and defending the society.The existence of commutation system has a great impact on the state of prisoners to serve the sentence and the effect of rehabilitation,and it affects the realization of intent of penalty to some extent.The commutation system in China was established by “Penal Law “in 1979.In the early establishment of the commutation system,there is not a clear understanding of the nature of commutation right for China,and there is not a clear location on that commutation right belongs to judicial power or administrative power.The distribution of power in the commutation is not reasonable,and the scope of authority and the location of each organ is not clear,resulting that The current commutation system in our country is revealing the conflict between administrative power and judicial power even more.To determine power attribute of the commutation right is the basis of the reconstruction of the commutation system in China.Commutation is a system of penalty alteration execution of reducing sentence of prisoners or changing from severe punishment to light punishment.The nature of commutation determines the status of the state and the criminals in the commutation and how to deal with the relationship between the state and the criminals.The nature of commutation in China is a penalty reward.As an educator,the state emphasizes the systematic guidance to educate hardened criminals,rewarding their good behaviors and punishing the bad behaviors.In order to obtain the commutation reward,criminals,as the ones to be educated,try their best to rehabilitate,which makes them plead guilty and abide by the law subjectively and reduce personal danger of themselves.In China's current commutation system,there are two main aspects of power dislocation: In the overall environment of our country,it is prominent for the administrative power to "violates" the judicial power and so it is in commutation,showing that the power of proposing commutation that contains the content of the criminals assessment occupies the dominant position in the process of commutation,so that the court's ruling power is reduced to the formal power,and the administrative power and the judicial power in the commutation are misplaced.On the other hand,in the allocation of power,the procuratorial organs are the only legal supervision organs,and the exercise of prosecutorial supervision power must depend on the specific litigation power of procuratorial organs with the execution and procuratorial work as a whole.But with the comprehensive view of the power allocation of execution supervision in China,the supervision of the procuratorial organ is actually a type of separate between the execution and procuratorial work,and lacks the specific supervision in the execution,which results in the weak supervision of procuratorial supervision in the execution,making the power of the party to be supervised exceeds the power of the supervisors.The fragile prosecutorial supervision power directly results that procuratorial organ cannot do effective supervision in the commutation about the exercise of administrative power of evaluating criminals and proposing commutation by execution organ and exercise of judicial power of hearing and ruling commutation by court.The most important part of problems above is the conflict between administrative power and judicial power.There are many reasons for the power dislocation of "executive power" and "judicial power".But the main reason is that in the initial establishment of the commutation system in our country,it is not clear about the power attribute of commutation right,which leads to the power conflict from the law enforcement,justice,to supervision in the process of commutation.To determine the nature of commutation right is the basis of constructing the commutation system,which is directly related to using what kind of power to adjust the content of the penalty execution and further determines the power allocation in the commutation and the responsibilities of the organs.Theoretically,the commutation right has three kinds of theories: the judicial power,the administrative power and the criminal execution.Combined with the analysis of three theories,I think that the commutation right belongs to the judicial power in our country based on the reality of China's state system.And this attribute is clearer after distinguishing the difference and connection between commutation and other legal matters,and judicial power and administrative power.Reconstruction of commutation system is the only way to reform the commutation system in our country.China is a socialist country of the people's democratic dictatorship,and guaranteeing the key position of the masses is the core and foothold to structure the commutation system.To establish the basic concept of the commutation system,it needs to emphasize fairness,strengthen the protection of the rights and interests of all participants,and enhance the scientificity.The commutation right in our country belongs to the judicial power.Therefore,compared with committee system under administrative power mode,the commutation of our country should retain the judicial mode and reconstruct it within this framework.The reconstruction of the commutation system should be carried out from two aspects: the optimization of examining and assessment system and design of the procedure of the substantive conditions of the commutation.In addition,the emphasis should be placed on the procuratorial supervision over the whole process from the execution of the punishment to the commutation order...