A Probe Into The Dilemma And Outlet Of The Application Of Control Punishment In China

The reform and development of the punishment of control have made clear the position of reservation and improvement from the attitude of the legislator.The punishment of control is the characteristic of Chinese penalty and the originality of Chinese criminal law.Against the background of the improvement of the openness of Chinese criminal law and the trend of light punishment and non-imprisonment in the development of world penalty,the legislator has made a major adjustment to the control penalty in the Criminal Law Amendment(8).One of them is community correction of prisoners sentenced to public surveillance.In the present judicial practice,there are many theoretical and practical censure on the control penalty,which results in the low punishment of the control penalty in the judicial practice.The application rate is even false.Based on the analysis of the difficulties in the application of the punishment of control,this paper expounds the causes of the difficulties,and puts forward some targeted solutions in light of the actual situation in our country.The first part mainly discusses the historical development and function of the punishment of control.From the time of liberation,"management",which appeared in the Provisional measures of revising Huaihai District to try Judicial cases,was the initial embryonic form of control punishment,and finally,the legislation of"Criminal Law Amendment(9)" has made clear the execution mode of concurrent punishment.That is to say,the principle of absorption shall be adopted when the penalty of fixed-term imprisonment and criminal detention is combined,and when the penalty of fixed-term imprisonment or criminal detention is combined with the punishment of public surveillance,the execution of the punishment of public surveillance shall continue after the execution of fixed-term imprisonment or criminal detention is completed.The development of several decades makes the punishment of control perfect step by step.Finally,it discusses the special function of the punishment of control,mainly the function of punishment,and the reform of the punishment.Functions and functions of crime prevention The criminal objects to which the control penalty applies are basically those who commit a lesser crime,do not completely restrict their personal freedom and do not cut off their financial resources,The method and method of punishing the offender of the punishment of control is its own.The second part mainly discusses the current situation and predicament of the application of the punishment of control.At present,the current situation of the application of control penalty is that the application rate is low,and even the risk of being fictitious.The difficulties in the application of the control punishment are as follows:first,the punishment of the control penalty is not strong enough,and the"restraining order"of the sentence is difficult to adapt to the prisoners during the execution of the sentence.It is not clear whether the illegal"prohibition order"violates the law and whether it overlaps with other regulatory obligations,and how it works.Secondly,the scope of application of control penalty is too narrow,but the proportion of control penalty in all crimes is decreasing.The applicable object of final Control punishment and The applicable conditions are not clear,the applicable conditions of control penalty and criminal detention are not clear,and it is difficult to choose which kind of chief punishment judge to apply when it is necessary to impose control or criminal detention.The third part mainly discusses the reasons for the dilemma of the application of the punishment of control,mainly for three aspects:first,there are loopholes in legislation,mainly including the obligation of the punishment of control is too common and general;In the last three chapters of the criminal law,there are many crimes of criminal detention and imprisonment in the same sentence file,which reduces the applicable charges of the control penalty.The other is that the judicial organs do not apply the control penalty according to the law because of social pressure,work pressure and the penalty of the control penalty is not good for the reform of the prisoner.The third is that the community correction institutions that carry out the punishment of control punishment still exist the work is not in place,community correction personnel leak out of control,out of control problems,lack of control of the lack of control Supervision of the application of the sentenceThe fourth part mainly discusses the guiding principle and the basic idea of perfecting the control penalty.The principle of combining punishment with leniency and strict punishment and combining the successful experience of foreign countries with the national conditions of China is beneficial to the implementation of the principles of justice,economy and mitigation of punishment.The principle of leniency means that it should be applied in cases where the penalty of control can be applied.Only if the punishment is not appropriate,will the other main punishment be considered.To change the misconception of using criminal detention as a substitute for the punishment of control,one cannot,for fear of trouble,take responsibility for imposing other penalties in cases where the penalty of control can be imposed.The punishment of control helps the prisoner It is necessary to reform and reintegrate it into society,which can reflect the justice and rationality of punishment.The state saves the cost of imprisonment and reflects the economy.At the same time,it also accords with the development trend of non-imprisonment and light punishment in the world criminal law.The perfection of the punishment of control should draw lessons from the relevant experiences of foreign countries,and at the same time,it should also pay attention to the practice of community correction in China.The concrete ideas of perfecting the punishment of control are as follows:to increase the intensity of control,to increase curfews and instructions to the prisoners,to increase the working hours and to increase the system of changing branches;Through the addition of the penalty of control in the last three chapters of the criminal law,the increase of the penalty of control over negligent crime,and the addition of the general principles of the criminal law In order to expand the scope of application of the punishment of control by means of the general abstract stipulation,to expand the scope of application of the punishment of control,to unify the object of application of the punishment of control by improving judicial supervision,and to distinguish the object of application of the punishment of control from that of the offender of probation.Through the judicial interpretation,the guiding cases should make clear the difference between the control penalty and the criminal detention penalty.