| With the changing social environment of our country and the deepening of the study of law,especially the theory of criminal law,in order to play the role of criminal law correctly,our legislation has made three amendments to the provisions of commutation and parole.After the promulgation of Amendment IX to the Criminal Law,the Supreme People's Court adopted the latest Provisions on Several Questions Concerning the Specific Application of Law in Handling Mitigation and Parole Cases at its 1693rd meeting on September 19,2016,which came into effect on January 1,2017.After comparative study,this article finds that the Provisions have made a lot of modifications to the original Provisions for Handling Mitigation and Parole Cases,but there are still Legislative deficiencies.In addition,since the implementation of this regulation on January 1,2017,there has been little discussion and research in the practical and theoretical circles.In view of this,this article intends to analyze the specific provisions of the current commutation and parole system and its changes as an observation angle,elaborate the existing problems in the legislation of the commutation and parole system in China,and seek solutions to this dilemma.This article first elaborates the specific provisions of the current commutation and parole system.From the commutation,parole system in all aspects of detailed analysis and comparison of its historical evolution.The main changes of commutation and parole system are as follows:the applicable substantive conditions are expanded and enriched,requiring the ideological education of criminals,and quantifying the performance of criminals'meritorious service to a certain extent;the applicable limitation conditions are that the scope of commutation continues to shrink,the range of commutation of life sentences for felonies and death sentences with suspension of death decreases substantially;and the applicable time conditions are that the suspension of death sentences is reduced to life.The starting time of the subsequent or original life sentence commuted to fixed-term imprisonment is prolonged,especially for violent felonies.This article focuses on three points to elaborate the necessity of improving the system of commutation and parole in China.The criminal policy of Combining Leniency with severity requires that the specific circumstances of each criminal be distinguished so that the leniency and severity can be achieved.Ruling the country by law requires commutation of sentence and parole system to be an important system reflecting the effect of penalty execution,controlling and preventing crime,maintaining social stability,protecting the legitimate rights and interests of victims,and reforming the criminal's repentance and self-renewal.To provide a clear legal basis for the implementation of the criminal law,it is required that the commutation and parole system should take into account the vital interests of criminals.Rational regulation is conducive to promoting the active transformation of criminals back to society,improving the quality of prison reform criminals,and strengthening the function of prison penalty execution.In view of the legislative defects and reasons of the current commutation and parole system in China,this paper argues that the legislative defects of the current commutation and parole system lie in the inadequate reflection of the criminal policy of Combining Leniency with severity;the absence of victim participation in commutation and parole procedures;the absence of restriction mechanism after commutation;the absence of victim participation in commutation and parole procedures;and the imperfection of supervision mechanism for commutation and parole.This article holds that there are three reasons for the defects of commutation and parole system in legislation:first,the concept of rule of law has not been effectively implemented.The absence of the concept of rule of law leads to the lack of reasonable application of commutation and parole system,and the lack of supervision of judicial discretion;secondly,excessive administrative intervention in practice.In practice,too much administrative intervention can easily lead to errors in the application of the law,as well as corrupt practices of judicial staff,such as favoritism and fraud,power and money transactions.Thirdly,there is a lack of scientific co-ordinated arrangements.Lack of scientific overall arrangement and effective mechanism of commutation and parole have not been formed in the system.Judicial staff who actually execute the penalty may make mistakes in the process of law enforcement due to subjective assumptions.Fourthly,insufficient subjective attention is paid to it.The whole society does not attach enough importance to the trial of commutation and parole cases.Judicial organs rely on the materials reported by the executive organs to conduct formal trials.Judicial staff will not conduct substantive reviews at all.Finally,this paper puts forward the following countermeasures in light of China's national conditions:fully embody the criminal policy of Combining Leniency with severity,refine the provisions on commutation and parole of short-term criminals from legislation,and provide the basis for provinces in formulating detailed rules for commutation and parole implementation;establish and improve the system of commutation and revocation,and deter criminals who still have surplus sentences after commutation and perform poorly,and intensify their victimization;People effectively participate in the trial process of commutation and parole in order to reflect the equal status of victims in criminal proceedings;improve the mechanism of supervision and commutation of sentences and parole by procuratorial organs to prevent corruption in handling commutation and parole cases;strengthen judicial supervision and supervision by improving legislation,promote the construction of reconsideration system and other means to effectively regulate the prison's discretion,and close the power.The cage of metric system. |
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