Study On The Legislative Division And Related Problems Of Misdemeanors And Felonies

In response to the call made by the Fourth Plenary Session of the 18 th Central Committee of the Communist Party of China for the improvement of the leniency system for guilty pleas and punishments in criminal procedure law,The Measures for the Pilot Program of Leniency System in Criminal Cases in Some Areas(hereinafter referred to as the Pilot Measures)were jointly formulated by the Two Senior Three Ministries in 2016,Pilot projects have been initiated in 18 municipalities throughout the country.Although the introduction of the Pilot Measures has provided guidance on how to apply the guilty plea penalty in judicial practice departments,there are still many disputes,such as the scope of application of the guilty plea system and the criteria of leniency of guilty plea penalty,etc.In order to solve the above-mentioned problems and further simplify the case of guilty plea and punishment,the pilot department has proposed dividing the crime into micro-crimes,misdemeanors and felonies,Some scholars also think that legislating on misdemeanor and felony should be the focus of the next reform.The stratification of misdemeanor and felony not only plays an important role in the complicated and simple diversion of guilty plea and punishment cases,but also plays an important role in solving some listed criminal entities and criminal procedure problems.Unfortunately,the concept of misdemeanor and felony has not been clearly defined in our countrys legislation,and there are still many arguments in theory about how to classify misdemeanor and felony.In order to realize the complexity of the crime of plea recognition and punishment,and make a distinction between a series of criminal entities and criminal procedures,this article will combine the national conditions of our country and learn from foreign legislative experience,research on the demarcation line and related issues of the legislation of misdemeanor and felony in our country.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is an overview of misdemeanor and felony.This section mainly introduces the framework system to study the misdemeanor and felony,and defines the concept of crime in misdemeanor and felony.Based on the definition of qualitative +quantitative concept of crime,the study of misdemeanor and felony can only be carried out within the existing criminal law framework system,but can not break through the existing criminal law framework.Crime,as the smallest unit of crime,is not onlycomparable but also has a comparative value.In this paper,the division of misdemeanor and felony is actually a division of the seriousness of crime.The second part is about the standard of dividing misdemeanor and felony.This part is one of the core contents of this paper.It mainly introduces the legislation status of the extraterritorial state misdemeanor and felony,the present theory status of our country,and puts forward the standards that should be adopted in dividing misdemeanor and felony.The extraterritorial countries mostly adopt the standard of form to classify misdemeanors and felonies.There are many theories in Chinese theory,such as the theory of legal standard of punishment,the theory of declaration standard of punishment and the theory of criminal nature standard.After considering various factors,the author concludes that the classification of misdemeanor and felony should adopt the standard of legal penalty in the standard of form.The third part,divide misdemeanor and felony the quantity standard of the legal punishment.After determining statutory punishment as the standard of dividing misdemeanor and felony,the quantitative standard of statutory punishment is studied.Based on the inherent requirements for the commutation of punishment and the multiple factors of our legal provisions and the appropriateness of the proportion of the misdemeanor to the misdemeanor and felony,it is more appropriate to take 5 years as the criterion of the legal quantity of punishment for felony and misdemeanor.A felony is a crime with a maximum statutory sentence of five years or more,a misdemeanor is a crime with a maximum statutory penalty of less than five years,and a minor crime is a crime with a maximum statutory penalty of less than three years.The fourth part is about the perfection of criminal law after the establishment of misdemeanor and felony.This paper mainly introduces how to amend and perfect the relevant legal provisions of criminal law and criminal procedure law after the establishment of misdemeanor and felony.The amendments and improvements to the provisions of the Criminal Law include the establishment of provisions on misdemeanors and felonies in the General Provisions of the Criminal Law,guided by the concepts of misdemeanors and felonies in the General Provisions of the Criminal Law,The provisions of the Criminal Law concerning the jurisdiction ratione personae,protection jurisdiction,probation system,recidivism system and the scope of punishment for attempted crime are amended.The amendments to the Criminal Procedure Law include the strict restriction of the application of arrest measures to criminal suspects and the expansion of the scope of application of the criminal reconciliation system.At the sametime,the author discusses how to apply the guilty plea system in misdemeanor and felony.