The Establishment Of Misdemeanor System In China Under The Idea Of Rule Of Law

‘Misdemeanor' is just a theoretical concept and there is no misdemeanor system in the category of criminal classification in China.Many countries divide the crimes into misdemeanors and felonies in their criminal laws and have special procedures for the misdemeanor cases.However,the crimes regulated in China's criminal law are almost equivalent to the felony part overseas.With the further study of the criminalizing theory,more and more scholars beigin to pay close attention to the construction of the misdemeanor system.They believe such a system construction will have positive influences on China's penalty structure and will help us to solve the problems existing in the illegal and criminal behaviour dealing process.This paper makes a systematic study on the misdemeanor system that will be established in China on the basis of the researches did by predecessors,generally analyzes some possible problems that may exist in the process of establishing the misdemeanor system and finally puts forward the personal suggestions to China's misdemeanor system construction.This paper can be divided into four parts: The first part analyzes the misdemeanor system and other related concepts.On the one hand,the author studies the overseas misdemeanor system and states its feature such as clear legislation,simple procedure,depenalization,etc.On the other hand,the author discusses the related concepts to the misdemeanor system and makes us have a more solid and further understanding of the misdemeanor system through the comparison among the misdemeanor system,the criminalization and the light punishment.The second part analyzes the necessity of establishing the misdemeanor system in China.The emergence of a system must have its value,then it has the meaning and foundation of its production and existence.Establishing the misdemeanor system in China has its practically urgent needs,which specifically reflect in the following aspects: the effective control of the expansion of the executive power,the need of implementing the criminal policy of combining punishment with leniency.At the same time,it also has the significant value of perfecting China's illegal criminal justice system and realizing the rational allocation of judicial resources.The third part analyzes the obstacles and difficulties existing in the system construction.Obstacles undoubtedly exist in the process of a new system.Establishing the misdemeanor system may lead to the expansion of the crime range and the conflicts among the current criminal law theory system.We should also carefully think about on how to define the range of the misdemeanor rationally.The third part is divided into three sections and discusses these three questions.The fourth part gives some general suggestions on the legislative setting of the misdemeanor system.This part makes the analysis from the entity and the procedure part of theconstruction of the misdemeanor system and puts forward the idea of perfecting China's misdemeanor system from the aspects of the division of the range of the misdemeanor,the setting of the penalty,the construction of the procedure and the criminal record elimination system.