The Problems And Suggestions Of The Application Of Judicial Discretion In Probation In China

Probation system has important and far-reaching significance to realize the socialization of punishment,humanization,education and reform of criminals,and to overcome the disadvantages of short-term imprisonment.The Criminal Law Amendment(VIII),on the basis of summarizing the experience of probation practice in the past,has made innovative amendments and improvements to the probation system.Legislators hope to make the probation system more operational by "clarifying" and "refining" the conditions for probation application.However,through the dynamic investigation of the judicial discretion of probation,it is found that the application of probation has a great impact on the pre-trial compulsory measures,the discretionary criteria for the use of probation by judges are different,the application rate of probation for different types of crimes is unbalanced,and the distribution of probation is unequal.In order to give full play to the value of the probation system,the author,with the awareness of the problem,further explores the constraints of the judicial discretion of probation from the aspects of the thought restriction of severe punishment,the shackles of abstract legal norms,and the fallacy of experiential leading judgment.In response to suggestions for improving the application of probation,the author restates the idea from deterrent isolation to re-social punishment in order to break the bondage of severe punishment to the referee.This paper discusses the identification of the formal elements of probation on two levels:the conditions of crime and the conditions of sentence.The article interprets the application of the four substantive elements of probation,and discusses the introduction of the standard of litigation proof and quantitative evaluation method of the substantive conditions.At the same time,taking the logic of judicial syllogism as the main line,it shows how judicial referees interact with the legal norms of the first probation system.Why do they think so much?Finally,they come to a convincing,unified,realistic and moderately eclectic conclusion.In other words,how does the judge come up with the basic way of judicial discretion to apply probation,so that the abstract probation discretion is specifically externalized to achieve the justification of probation application.