Research On Discretionary Exemption From Punishment System

Discretionary exemption from punishment shall mean that the judicial apparatus exempts the perpetrator from criminal punishment according to the circumstances of sentencing not expressly stipulated in the criminal law,except for the circumstances of legal exemption from punishment.The system of discretionary exemption of punishment contains rich practical value,which has positive significance in manifesting the spirit of modesty of criminal law,promoting the reform of mitigation of punishment,realizing the individualization of punishment and improving the system of punishment discretion.However,the applicable standard of discretionary exemption of punishment in Article 37 of the Criminal Law of China is relatively simple and vague,lacking clarity.Because of this,the discretionary exemption function of the exemption from punishment stipulated in Article 37 of the Criminal Law and its application as an independent basis for exemption have been questioned,criticized or even denied.It is found that the opinions of questioning and negating are unreasonable.By decomposing and reading the articles,we can prove that the connotation of the exemption provisions of Article 37 of the Criminal Law coincides with the discretionary exemption penalty system,and that there is consistency in the concepts,functions and application effects between the two.By analyzing the views of negatives,we can prove the necessity and rationality of the exemption provisions of Article 37 of the Criminal Law as the discretionary exemption penalty system,the standby provisions of statutory exemption of penalty in criminal law;By examining judicial documents and court judgments,it can be proved that the discretionary exemption function contained in Article 37 of the Criminal Law has been adopted by relevant judicial documents,and has been approved by judicial practice.To sum up,it is both necessary and reasonable to recognize that Article 37 of the Criminal Law has the function of discretionary exemption from punishment.However,we must admit that there are still some shortcomings in the discretionary exemption system in our country.It is necessary to revise and improve the existing problems in the judicial practice of this system and build a more scientific and standardized operation system of the discretionary exemption system on the basis of investigating the relatively mature legislative experience outside the country.In terms of substantive conditions,we should make it clear that the discretionary exemption penalty system of Article 37 of the Criminal Law is applicable to cases without the reasons for statutory exemption,and at the same time limit its application to criminals whose statutory maximum penalty is not more than three years of fixed-term imprisonment,and add specific applicable conditions and exceptions;in terms of procedural conditions,we should strengthen supervision and restriction,and for those who apply discretionary exemption penalty,in addition to the judgment of the Supreme People's Court,cases shall be uniformly approved by the Higher People's Court.