Thoughts On The Establishment Of A Criminal Record Eradication System In My Country

Neither the administrative law nor the criminal law of our country applies the concept of "criminal record",but it is obvious that the history of an individual being subjected to criminal punishment bears his subsequent legal responsibility and has a negative impact on all aspects of his social life.As there is no previous criminal record in the strict sense of the elimination of the criminal record,the permanent criminal penalty record of individuals often seriously affect their normal life,or even block their way into the lives of ordinary people.People with record label in job-hunting,enters a higher school,army,engaged in public,such as experience discrimination everywhere,into the "second-class citizens" of the society,not only significantly deviated from the foundations of the liability of the criminal law,improper violation individual social rights,and maintenance also run counter to the basic goal of community safety and prevention to crime,so the influence of system research record,grope for conditional elimination of criminal record system,extremely practical significance.Thinking according to the overall system,the criminal record system includes a criminal record,this article named record research can eliminate cover criminal record,but the record never because there is no law will dilute the attention of the people criminal history to someone,instead of personal criminal history will arouse the people on the alert and resistance in the first time,and record destroy if not written law norms,people tend to be permanently even to play with criminal record criminal label,since there is no specification confirm under the situation of the whole system activity showed no tendency to eliminate ex-plays extremely easily,thinking according to specification,to record destroy as the breakthrough point,clear legal thinking,More balanced legal orientation,the expression of justice and efficiency.This paper is divided into five parts,about 50,000 words.The first part summarizes the concept and essence of criminal record and its elimination,introduces the present situation of foreign legislation and the progress of legalization in China.First of all,different from the sealing up,pardon and recovery of criminal records,criminal record refers to the experience that the perpetrator was declared guilty by the court because of the act violating the criminal law.Ex-conviction elimination refers to the elimination of a convicted and recorded offender and the facts.Secondly,the essence of the elimination of criminal record is the elimination of the after-effect of the declaration of guilt.The function of the elimination of criminal record is to remove the label of "crime" from the criminal,eliminate the discrimination of the society against the criminal,and make him smoothly integrate into the normal social life.Thirdly,in the countries of the traditional civil law system,the institutionalization degree of the elimination of criminal record is relatively high.The criminal code sets up a separate section to stipulate that the elimination of criminal record is conditional on the subsequent good performance of the person with a criminal record and the fact that he has not violated the criminal law again.Finally,although China's criminal law initially stipulates the sealing of criminal records,in fact,criminal law,civil law and administrative law from time to time reveal the negative impact of the present criminal record.The second part summarizes and evaluates the legal provisions and practice choices related to the criminal record.Firstly,the article of criminal law about the former conviction attached to the illegal act affecting the conviction and sentencing is sorted out,and the rationality and defects are evaluated.Secondly,according to the criminal law amendment(ix)and the relevant judicial interpretation,the author analyzes the occupational prohibition provisions applicable to the special criminal released personnel.Thirdly,from the practical needs,this paper extracts the rational basis of the previous criminal report stipulated by the current criminal law,analyzes its advantages and disadvantages,and points out that it lacks the specific operational links.Secondly,it analyzes the negative influence of criminal record on the resocialization of released prisoners.Finally,it analyzes the establishment conditions of eliminating criminal record and sealing up criminal record stipulated by the current criminal law,and puts forward its own doubts while confirming its legislative intention.The third part demonstrates the theoretical basis of establishing the elimination system of criminal record in our country,and clarifies the practical needs.First of all,the elimination of criminal record to a certain extent reflects the meaning of the criminal law of responsibility.Since the criminal law stipulates the principle of the compatibility between crime and punishment,the criminal will be punished twice or even many times for a criminal act,which is bound to go against it.The elimination of criminal records also helps to achieve special prevention.On the contrary,criminals are always branded with criminal records,and the criminal's label will be with them for life,which makes it difficult for them to truly integrate into community life.Secondly,the institutionalization of the elimination of criminal records does not mean that all criminal records should be eliminated.The system only puts the elimination of criminal records and criminal records into one system,so as to balance the protection of social security and personal rights.Thirdly,based on everyone's social attributes and living needs,the establishment of the elimination system of criminal record is in line with the humanization trend of the world criminal law and the requirements of China's criminal policy of tempering justice with mercy.The fourth part,detailed analysis of the conditions,objects and scope of the elimination of criminal record.First of all,the scope of elimination of the criminal record is determined by the amount of crime and social risk factors.The essential condition of eliminating criminal record in law is to define the scope of eliminating criminal record from various elements of crime such as the subjective aspect of the crime,the subject of the crime,the form of the crime,the joint crime,the penalty and the charges stipulated in the specific provisions.Secondly,the formal condition of the elimination of criminal record is the partial effective conviction,in which,while recognizing the effectiveness of the foreign court's judgment,the elimination of criminal record should pay attention to the convergence of law application.Thirdly,the conditions for the elimination of criminal record are comprehensive.The evaluation should not only pay attention to the quality and quantity of the crime,but also pay attention to the subsequent performance of the offender and the performance after his release.In the fifth part,the methods and procedures of eliminating criminal record are demonstrated.Eliminating criminal record can be divided into three ways: complete elimination and incomplete elimination,automatic elimination and application for elimination,immediate elimination and deadline elimination.The three methods are selected on the basis of the social harmfulness and personal danger of the crime and their grades.On the basis of clarifying the substantive conditions for eliminating previous convictions,a set of control procedures should be implemented for such methods as application and elimination of deadline,so as to ensure that people who have committed crimes,including those released from prison,can smoothly integrate into the anonymous community life.On this basis,to strengthen the connection between criminal law and other department laws,judicial departments and other administrative departments,enterprises and other social organizations to cooperate and jointly create a relatively harmonious and safe community environment.