Study On The Application Of Probation In The Combination Of Several Crimes And Punishment

With the continuous development of the theory and practice of criminal law,short-term free punishment has been criticized for its weak punishment function and easy to lead to cross-infection of criminals.The advantages of probation have gradually emerged,Criminal law in various countries favors probation when punishing relatively minor crimes.However,there are still many problems in the application of probation.The research object of this paper is the application of probation in combined punishment for several crimes,focusing on whether and how to apply it.The criminal law of our country clarifies the exclusion conditions for the application of probation for recidivists and the principal elements of criminal groups,but does not stipulate whether probation can be applied in the case of multiple crimes,which leads to many divergences in judicial practice.In judicial practice,it is generally believed that the combined punishment of several crimes indicates that the personal danger of the perpetrator is serious,so the application of probation is generally not considered.This judgment of the personal danger of the perpetrator is "preconceived first",which greatly limits the scope of application of probation and is not conducive to the realization of the purpose of the probation system.In addition to the question of applicability,there are still many disputes about the applicable procedure,the conditions for the application of the term of imprisonment and the mode of application.Therefore,it is necessary to make a detailed demonstration and analysis of the relevant issues of probation application in combined punishment for several crimes.This paper is divided into three chapters.Chapter 1 starts with cases,summarizes the main disputes on the application of probation in judicial practice,analyses the current situation and problems of "different sentences in the same case" on the application of probation in judicial practice,and points out the theoretical root of this situation,that is,the system of combined punishment for several crimes and probation are reasonable.There are conflicts on the basis of the theory,which leads to difficulties in the application of the two at the same time.The second chapter focuses on the analysis of the probation in the concurrent punishment of several crimes.This paper will summarize the different viewpoints and reasons of the application of probation in different cases of combined punishment for several crimes,interpret the relevant foreign legislative cases,analyze the position and attitude of the existing legislation and judicial interpretation in China,and on this basis,express their own position,and clarify the reasons separately.Generally speaking,in the case of combined punishment for several crimes,as long as it meets the applicable conditions of probation stipulated in the Criminal Law,it can be declared probation in principle.However,it is generally inappropriate to declare a suspension of sentence in cases of omission or recidivism during the execution of penalty and recidivism of new crimes during the probation period of probation.Chapter three is the perfect path of probation application in combined punishment for several crimes.Firstly,this paper discusses the exclusion conditions of probation in concurrent punishment for several crimes,that is,it is not appropriate to declare probation for criminals when committing the same kind of several crimes with intent and committing some special kinds of crimes on several occasions.Then,this article will discuss the procedure selection and term conditions of applying probation to multiple crimes combined punishment.In the choice of procedure,we should adopt the method of "first and then suspended".That is,convicting and sentencing the logarithmic crimes separately,and deciding the execution penalty according to the principle of combined punishment for several crimes.On this basis,we can judge whether the execution period meets the applicable conditions of suspension,so as to decide whether to declare the suspension and determine the probation period of suspension.In determining the conditions of the term of imprisonment,the term of execution should be taken as the criterion for judging whether the probation can be applied.In terms of applicable methods,the same penalty is combined punishment by restricting aggravation,and the different penalty is combined punishment by absorbing principle or combining principle according to different circumstances,and then judges whether to declare a suspended sentence according to the penalty decided by the combination.