Research On The Exemption From Criminal Punishment Of The Article 37 Of The Criminal Law

Criminals must bear the criminal responsibility after the crime,and the way of assuming the criminal responsibility includes not only conviction and sentencing,exemption from criminal punishment and the non penalty measures are the way to assume the criminal responsibility.Since entering the modern era,the reduction of penalties has become the direction of the development of Criminal law.Under the guidance of the criminal policy of combining punishment with leniency,the article 37 of the Criminal Law,as the institutional basis for exemption from criminal punishment,has always been valued by theorists.However,due to the different interpretations of the basic meaning of the article 37,confusion of applicable standards was caused,which in turn led to a low overall application rate of the system.On the basis of summarizing the previous scholars' research results,this article explores the true meaning of the exemption from criminal punishment of the article37 in order to play a guiding role in judicial practice.The first chapter is the investigation of current situation of the application of the exemption from criminal punishment,the sample of the exemption from criminal punishments in 2017 in Shanghai published by the judgments online,and finds out the current status of application of the exemption from criminal punishment and the problems that arise in the application process.The article 37 mainly faces thefollowing dilemmas in the process of application: First,the standard of judicial application of fuzzy.Second,the boundary between the article 37 of the Criminal Law and other provisions is unclear.The second chapter is a detailed analysis of the basic meaning of the exemption from criminal punishment of the article 37.In this chapter,the author proposes that the article 37 is the independent reason for exemption from punishment.After that,the author analyzes in detail the meanings of “Crime plot”,the considerations of “The crime plot slight” and the relationship between the article 37 and related provisions.The author believes that the article 37 of “Crime plot” should be limited to the circumstances that are directly related to the facts of the crime.Sentencing circumstances that are not directly related to the facts of a crime and partly reflect only the personal danger of the accused and the possibility of recidivism should be excluded.On the criterion of “The crime plot slight”,the author disagrees with the standard of formality and holds that it should be based on substantive standards,such as the target of crime,the methods and means of crime,the amount of crime,the result of crime,the time and space conditions of crime,etc.“The crime plot slight”and“Need not be sentenced to a punishment”are the two parallel preconditions applicable to the article 37.The main basis for“Need not be sentenced to a punishment”is the consistent performance of the defendant before the crime and the penitence after the crime.In addition,the author also discusses the relationship between the article 37 and relevant provisions.The relationship between the article 37 and 16 articles which is provisions on the circumstances of offsetting the penalty specifically can be considered from the following two aspects.First,the article 37 as general provision has guiding significance to the application of other provisions for offsetting the penalty.Second,the article 37 supplements other 16 articles,which is embodied in the supplement of the exemption from the basis and the application of non penalty measures.As to the relationship between the article 37 and the article 5,the author believes that the article 5 and the article 37,as the general provisions on sentencing,are the guiding principles that the judiciary should follow in sentencing.However,the mitigation of punishment of the article 63 and the exemption from punishment of thearticle 37 are all breakthroughs of the statutory punishment of criminal law.The third chapter is mainly about how to apply the exemption from criminal punishment of the article 37 specifically.In the scope of the application of the article37,the author considers that the article 37 has the possibility of applying to all charges in theory.In addition,the author also puts forward some specific reference factors for the application of the exemption from criminal punishment.For example,If the behavior has been evaluated by the Criminal law or related judicial interpretations as “serious circumstances”or “disgusting circumstances,”the judiciary should not adjudicates that the defendant is exempted from criminal punishment.In the case where the relevant judicial interpretations require that the defendant's behavior should be punished severely,the judge should also apply article 37 of the Criminal Law prudently.In view of the chaos in the practice of law reference,the author also conducted a classification discussion.In my opinion,When the case has not the statutory circumstances of offsetting the penalty,the article 37 of the Criminal Law should be cited in the judgment,When the case has the statutory circumstances of offsetting the penalty,the article 37 of the Criminal Law should also be cited in the judgment.In addition,If the non penalty measures are to be applied at the same time as the exemption from criminal punishment,the People's Court shall also refer to the article 37 as the legal basis in the judgment document.