Study On The Construction Of The System Of Revocation Of Commutation

Revocation of commutation refers to the system of cancellation of commutation sentences and the restoration of the original sentence,in full or in part,to those criminals who have been given preferential treatment for commutation in accordance with the statutory reasons.According to the revocation conditions,the revocation of commutation can be classified into two categories: "revocation of occurrence commutation" and "revocation of discovery commutation".In China,the system of revocation of commutation is a blank in legislation,and criminal legislation and relevant judicial interpretations do not explicitly stipulate that commutation can be revoked.The academic circle have launched a theoretical discussion on whether China should establish the system of revocation of commutation.At present,more and more people hold positive attitude.In recent years,some local courts in China have started the practice of commutation and revocation.In practice,some successful cases of commutation and commutation have been made for those commutators who have recommitted crimes,and some exploratory experience has been gained.The absence of commutation and revocation system can not restrict the later reform of commutation for prisoners,nor can it guarantee the stability and safety of the order of supervision places.The commutation and revocation system can not only solve these problems,but also make up for the structural defects and application drawbacks of commutation system.It is also conducive to ensuring the correct implementation of execution of penalties and has the necessity of construction.In addition,the solid theoretical foundations such as the criminal law teleology,the penalty individualization theory,the benefit theory of criminal law and the theory of incentive mechanism can deduct and support the macro-vision of the system of revocation of commutation.This system is in line with the guidance of the criminal policy of combining leniency and severity,and it is the specific implementation of judicial policy of “seeking truth from facts,rectifying whatever is wrong” and the prison enforcement policy of “taking punishment and reform as the purpose and taking transforming people as the purpose”.At the same time,foreign legislative provisions for the revocation of commutation can be used for reference.Besides,the domestic judicial exploration in recent years also provides valuable experience.Therefore,the construction of the system of revocation of commutation is feasible.China's construction of the system of revocation of commutation should be carried out from three dimensions: the applicable conditions,the applicable procedures and the legal supervision.To reduce the penalty for a commutation of a criminal who meets the legal revocation,a variety of factors shall be take into consideration to set a trial period and a period of application for the commutation of the sentence in order to regulate the exercise of the right to revoke the sentence.According to the substantive conditions,the revocation of commutation should be divided into should-do and must-do conditions for separate treatment.Of course,this system does not apply to all criminals.In exceptional cases,commutation of sentence shall not be revoked.The revocation of commutation is related to the vital interests of criminals and the normal operation of the national execution machine.Therefore,strict,fair and detailed procedures for commutation and cancellation shall be established.The penal enforcement agency and the procuratorial organ,according to the circumstances,shall divide cases to the original court of commutation for trial,and guarantee the right to participate in the litigation of the organ and the criminals,and shall form a collegiate bench to open the trial in public,change the method of written trial and remove the administrative nature of the adjudication procedure.In order to protect the legitimate rights and interests of criminals,it is necessary to grant criminals relief rights of reconsideration,appeals and so on.For the system of revocation of commutation,the procuratorial supervision should be guaranteed to be involved at all times in all procedures,so that the procuratorial organ can fully exert its supervisory function in commutation and revocation activities.