Research On The Revocation System Of Commutation Of Sentence

The commutation system is an important part of our country's penalty execution system.As an effective means of execution regulation,the system which is their main motive force and goal of reform can encourage criminals to actively reform and return to society as soon as possible.However,because that the existing commutation system is a one-way applicable penalty execution system,there is no test period for its application and no restriction after the event,and it is more incentives for the perpetrator's performance over a period of time.These factors lead to criminals pretending to reform actively,obey the law and work earnestly in order to defraud commutation of sentences while serving their sentences.After commutation of sentences,the performance of reform has declined,even the phenomenon of violation of the law and crime has occurred.However,the previous incentives for commutation of sentences can not be revoked under the existing legal framework and judicial procedures,and current legislation can not provide continuous supervision of criminals.This is undoubtedly contrary to the original intention of setting up the commutation system.In order to overcome the above shortcomings of commutation system and to regulate the excessive utilitarian behavior of criminals in the execution of penalties,the system of commutation and revocation emerged as the times require.The system makes up for the shortcomings of the lack of predictability in commutation under normal circumstances,helps to restrain the criminals after commutation,crack down on their speculative psychology in commutation,improve the efficiency of execution of penalties,and achieve the purpose of general and special prevention of penalties.At present,from a worldwide perspective,France,Italy,the United States,Canada and other developed countries have established the systems of commutation and revocation,and the systems play an active role in judicial practice.As far as our country is concerned,the existing criminal legal system,apart from provision of discovery-based commutation and revocation system,is still in a blank state for Occurrence-type comrmutation and revocation system,i.e.the violation of rules and regulations or the new violations and crimes that occur after the commutation ruling takes effect.Therefore,the absence of the system of commutation and revocation is not conducive to maintaining the normal management order of prisons,forming continuous and effective supervision and restriction on the behavior of criminals after commutation,and thus achieving the purpose of fully educating and reforming criminals.Based on the above considerations,this paper systematically discusses the system of commutation and revocation.and draws on the advanced legislative experience of major international countries to construct our system of commutation and revocation.So,it undoubtedly has important theoretical and practical significance.Aparting from the introduction and conclusion,the article is divided into four parts.The first part explains the general theory of commutation and revocation system.The system of revocation of commutation refers to the system of partial or total revocation of the original decree of commutation of sentence in accordance with legal procedures,after verification by the people's court,for the legal reasons arising during the trial pernod of serving a sentence after commutation.The system of commutation and revocation has its particularity in the applicable object,period,legal cause and legal consequences.There is a controversy between affirmation and negation on whether commutation is revocable in the academic circles of our country.This paper holds that the system of revocation of commutation should be established in our future legislation,but strict conditions and procedural restrictions should be imposed on the operation of the system.In the second part,the legitimacy basis of the system of commutation and revocation is discussed in detail.The theoretical basis of the system of commutation and revocation includes the inherent agreement with the purpose of penalty,the essence of commutation,the basic requirements of incentive mechanism,the need of criminal policy of Combining Leniency with severity,and the inevitable requirement of the principle of efficiency of execution.The practical basis of the commutation and revocation system includes the need for the reform of the penalty system,the need for the correct exercise of the penalty power,the need to safeguard the normal regulatory order,the need to curb the criminals'recidivism and the need to strengthen the procuratorial supervision of commutation.The feasibility of the system of commutation and revocation is mainly manifested in the feasibility of law and reality.The third part makes a comparative study of the system of commutation and revocation.In the world,France,Italy,the United States,Canada and other relevant countries have established relatively complete systems of commutation and revocation.Our country should learn from its advanced experience in terms of applicable conditions,diversification of types,strict procedural provisions,establishment of test period,participation of offenders in relief mechanism and procuratorial supervision mechanism to construct our relevant legal system.The fourth part discusses the legislative conception of the system of commutation and revocation in detail.The object of application of the system of commutation and revocation in our country should be limited to the criminals who have been convicted of commutation during the period of serving their sentences.The test period of the system of commutation and revocation should be determined by taking into account such factors as the reduced sentence,the length of the sentence,the range of commutation and the remaining sentence.The applicable conditions of the commutation and revocation system include:the criminals who serve a sentence violate the order of supervision and resist reform;the criminals who serve a sentence repeat non-negligent crimes during the trial period of commutation;the criminals who serve a sentence have the ability to refuse to perform property penalty or incidental civil compensation obligations as determined by court judgments,and so on.The application procedure of commutation and revocation system should be designed from the aspects of initiation procedure,review procedure and trial procedure.The exceptions to the system of commutation and revocation include two situations,that is,the non-revocation of the alteration of sentences caused by commutation and the non-revocation of the term of commutation for major meritorious service.The supervision and relief system of commutation and revocation should include the participation system of commutation and revocation,appeal system of commutation and revocation of procuratorial supervision system of commutation.