Research On The Exemption From Criminal Punishment

In the traditional criminal law theory,a crime is considered to be the necessary premise of punishment,while punishment is the inevitable consequence of a crime.Crime and punishment are considered as the basic elements of criminal law,and Article 37 and other exemption clauses in the Criminal Law of China provide the legal basis for the exemption from criminal punishment after conviction.With the development of the mitigation of criminal punishment,more attention has paid to the system of exemption from criminal punishment by theoretical academics.However,such issues as whether Article 37 can be applied independently and how the exemption clauses can be applied appropriately,are subject to constant disputes,which has caused confusion as to the application standards for the exemption clauses in judicial practice and led to a low application rate in China.This thesis,based on the previous research,discusses the system of exemption from criminal punishment in four parts in hope to provide a few suggestions for future studies of the theory as well as the judicial practice.The first chapter of the thesis gives an overview of the system of exemption from criminal punishment,which includes its connotation and legislative basis.First of all,the author clarifies the connotation of the system,that is,the accused has been convicted but exempted from punishment.Meanwhile,the author also illustrates the differences among the exemption from criminal punishment,the proviso of Article 13 and probation.Besides,the author analyzes several similar concepts and clarifies the relationship between exemption from criminal punishment and exemption from punishment.The two have the same effect in application,while their applicable conditions vary.Finally,the author underlines the value of exemption from criminal punishment,which reflects the mitigation of criminal punishment,the individualization of punishment and the economy of criminal punishment.The second chapter of the thesis is an analysis of the status quo of the system and its predicament.In this part,the author analyzes related cases concluded by the courts in Shanghai during the year of 2018 and other documents to study the current application of the exemption from criminal punishment.The author puts forward the dilemma faced by the system according to the study.On the theoretical level,some scholars propose that the exemption system is a deconstruction of the criminal law boundary,and it should be deleted.Besides,whether the Article 37 can be applied independently is still controversial.On the practical level,the application standards for exemption clauses are confusing,and there are even two standards for one clause.The reasons written in the judgments are not well-founded and the quotation of sentencing provisions are confusing.The third chapter of the thesis explains the applicable conditions for the exemption clauses.The author first demonstrates from both the positive aspect and negative aspect that Article 37 can be used as an independent clause.Then,the specific conditions for the application of Article 37 are analyzed.The applicable conditions for the exemption clauses include “the slightness of a crime” and “no need to impose a penalty”.The former focuses on the social harmfulness of the behavior,while the latter focuses on the personal danger of the defendant.In the judgment of the crime plot,the author believes that it should be a holistic evaluation of the conviction plot and the sentencing plot,which not only contains plots of the crime,but also needs to consider the pre-crime and post-crime plots.In judgment of the slightness of a crime,the author disapproves of the "three-year" standard,and advocates the substantive considerations from the means and methods of crime,the time and environment,the objective of crime,the result of crime,and other factors,as well as several exclusions.As to no need to impose a penalty,the author considers that the performance can be examined from three stages,before,during and after the crime.Several suggestions for the exemption system are put forward in the fourth chapter.In terms of the concept of punishment,the author analyzes the factors that hinder the application of the clauses and the development of non-penalization in China.For instance,the absolute retribution punishment and the concept of punishment for every crime must be changed.In legislation,we can learn from the German criminal law to further enrich the exemption provisions of the criminal law in China.At the same time,we should establish a mode of "criminal procedure-administrative sanction" in economic crimes in order to fully explore the value of the system.In the judiciary,it is necessary to further standardize the exemption provisions,and classify the type of judicial interpretation to guide the judicial practice.Finally,a sound supervision mechanism should be established and the supervisory role of the procuratorial organs should be given full play.