The Necessity And Feasibility Analysis Of Establishing A System For Eliminating Criminal Records

The discussion on building a system for eliminating criminal records in China has a long history,but it is basically limited to academic discussions,with very few responses from legislation and judicial practice.Although the progress in institutional construction has been minimal,in the process of academic discussion,the concept of criminal record,the concept of criminal record elimination,the nature of the two,the differences between criminal record and criminal record sealing and criminal record elimination,as well as the theoretical basis for criminal record elimination,have gradually become clear.This provides obstacles for further research on the construction of China’s criminal record elimination system The necessity and feasibility of institutional construction provide theoretical basis and inspiration for ideas.What are the obstacles to the construction of an ex-conviction elimination system in China?Firstly,the opposition of the victim community.After the rise of victimology after the Second World War,the status of victims in criminal justice has gradually increased,and China has also attached increasing importance to the subject position of victims in theory and judicial practice.The victim group has a natural resentment and hostility towards the perpetrator group,and has difficulty in accepting the elimination of their previous convictions.Secondly,public opinion support for victim groups.Public opinion is naturally sympathetic to the weak,and the victim is the weak side of the crime.This also challenges the legitimacy,legality and authority of the ex-conviction elimination system.Finally,the strengthening of public opinion by Chinese traditional criminal law culture.Culture is a deep-rooted factor in shaping public opinion,and the tendency towards heavy penalism and instrumentalism in China’s traditional criminal law culture has a deep-rooted influence on the psychology of sympathy for the victim and hatred for the perpetrator.There is a need to build a system for the elimination of previous convictions.Since 1980,it is conservatively estimated that there are more than 30 million ex-convicts in China,together with the population indirectly affected by ex-convicts,which may reach 100 million.The negative impact of previous convictions is reflected in two aspects:normative and non-normative evaluation.Normative evaluation can be divided into criminal law normative evaluation and non-criminal law normative evaluation.The prominent manifestation of normative evaluation of criminal law is sentencing in criminal justice;the non-criminal normative evaluation is manifested in the deprivation and restriction of various rights of ex-convicts,among which the restriction on the qualification for employment is particularly serious.The non-normative evaluation is the spontaneous evaluation of ex-convicts by the public,a kind of social evaluation.The theory of reorganized shame can serve as a theoretical basis for non-standard evaluations.By analyzing this theory,it is possible to correctly understand and utilize non-standard evaluations to promote the return of former offenders to society.There is a case to be made for a system of ex-convict elimination.On the one hand,a low recidivism rate is a realistic possibility for structuring the system.The recidivism rate is influenced by multiple factors,and the deterrence of previous convictions does not play a major role.A number of scholars have conducted studies on recidivism rates in China,and together with an examination of recidivism rates in dangerous driving cases in Weihai,it is possible to conclude that recidivism rates are low.The low recidivism rate is evidence of the low personal risk of ex-offenders,and therefore eliminating their previous convictions will not cause a spike in recidivism rates.On the other hand,the obstacles to institutional construction can be overcome.In different types of criminal cases,victims have different levels of animosity towards the perpetrator;in victimless crimes,the voice of the victim is expressed as public opinion.Public opinion is steerable,and state authorities,the press and opinion leaders all have a role to play.Our legal culture has two faces,and its morality is an effective force against heavy-handedness and instrumentalist tendencies,which should be promoted and utilised.