Writing Community Correction into Criminal Law

20 1 1 On February 25th, the 19th meeting of the 11th the National People's Congress Standing Committee (NPCSC) deliberated and passed the "Amendment 8 to the Criminal Law of People's Republic of China (PRC)", which clearly stipulated that criminals sentenced to public surveillance, probation and parole should be subject to community correction according to law, which marked the establishment of the legal system of community correction in China and laid an important foundation for reforming and perfecting the criminal execution system in China. Writing community correction into criminal law has the following five important meanings.

First of all, from the spirit of criminal legislation, it strongly responds to the requirements of the socialization of execution in the international community. First of all, from the perspective of the purpose of punishment, China's current criminal law theory emphasizes the combination of punishment and reform in the application and execution of punishment. This kind of community correction is clearly stipulated in the criminal law, and the concept of socialization of execution is clearly established in legislation, which makes socialized execution have rules to follow and laws to follow. Secondly, from the perspective of criminal policy, community correction legislation is also a concrete embodiment of implementing China's criminal policy of "tempering justice with mercy", which fully embodies China's principles and policies of "education, probation and rescue" and "combination of punishment and reform, and combination of education and labor" for criminals; This is an urgent need to actively promote the reform of the judicial system, and it is also a useful exploration to improve the penalty execution system with China characteristics. Finally, writing community correction into criminal law conforms to the trend of socialization of execution in the international community. The first United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Geneva from 65438 to 0955 adopted the Standard Minimum Rules for the Treatment of Prisoners, in which Article 6 1 clearly stipulates: "The treatment of prisoners should not focus on excluding them from society, but on their continuing to become members of society. The United Nations Standard Minimum Rules for Juvenile Justice (Beijing Rules) clearly points out: "Full attention should be paid to taking positive measures, which involves fully mobilizing all possible resources, including families, volunteers and other community groups, schools and community institutions, to promote the happiness of teenagers, reduce the need for legal intervention, and deal with them effectively, fairly and humanely when they violate the law. The community correction of this criminal law is undoubtedly a milestone in the development of socialization of execution in China, and it is a positive response to the United Nations convention, which shows the attitude of a responsible big country in China. Secondly, two complementary correction systems are established. The most common form of free punishment in execution is imprisonment. Undeniably, imprisonment has played a great role in crime prevention. However, with the continuous development of criminal law theory and the deepening of human rights thought, people gradually realize that imprisonment correction has its limitations, so the mitigation of punishment types, the light punishment and the openness of punishment have become the inevitable results of the development and progress of criminal law. In this case, community correction is widely carried out around the world with the wave of socialization of execution. If it is the first leap to replace corporal punishment with free punishment, then the community correction system is a big step towards the progress of human social civilization and the second leap from imprisonment to non-imprisonment punishment. Compared with imprisonment correction, community correction has great advantages. But this does not mean that community correction can replace imprisonment correction. In fact, community correction and imprisonment correction complement each other. Clearly stipulating community correction in China's criminal legislation will certainly promote the further cooperation between the two correction systems, thus achieving great results in crime prevention. There are two points about the relationship between them: first, community correction can make up for the deficiency of imprisonment correction. There are two insurmountable problems in prison correction in crime prevention: one is the contradiction between the relative finiteness of prison and the relative infinity of criminals. In the long run, the construction of prisons is limited, and the population is growing, and the number of criminals in the population growth is gradually increasing, so prison correction cannot be the final choice for crime prevention; In the short term, in a certain period of society, the cost of state investment in prisons is limited. As far as economic cost is concerned, the corresponding cost of community correction generally does not exceed 20% of prison detention. Implementing community correction can save more judicial resources. The school of social law believes that criminals commit crimes because of social and personal factors. Society itself is the cause of crime. Choosing to put criminals into society and make corrections with the help of social forces is the "right medicine", which realizes the internal digestion of criminals and effectively solves the problem of limited execution resources. Taking the construction of correctional staff as an example, correctional work requires staff to have the knowledge, skills and ability to correct criminals' psychology and behavior. However, the resources of specialized correctional officers, probation officers and parole officers for national criminal execution are limited. Therefore, the implementation of community correction can rely on various correction resources and service forces in the community to effectively deal with crimes, which is not only the fundamental difference between community correction and prison correction, but also the biggest advantage of community correction compared with prison correction. Putting criminals in the community for correction can not only reduce the manpower and financial burden of prisons, but also reduce the state's economic investment in prisons, reduce the cost of imprisonment and execution, and relieve the pressure of prison correction, so that prisons can concentrate manpower, financial resources and material resources on correcting criminals who are subjectively vicious and socially harmful. Second, the contradiction between imprisonment and re-socialization of criminals. The research results of modern criminology show that criminals commit crimes because their socialization process is not completely completed, while the traditional imprisonment correction keeps criminals in prison and isolates them from society, which greatly weakens the basic conditions and environment of socialization, but makes the socialization speed of criminals lag far behind the normal members of society. Not only that, imprisoning criminals in prison will also enable criminals to learn criminal techniques and skills invisibly, spread prison subcultures, and thus form cross-infection. For example, some first-time offenders have been imprisoned for some time, but their personal danger has increased. It can be seen that although the isolation function of prison has a positive effect on criminals with high social risk, this isolation cannot be used as the ultimate means of crime prevention, because criminals will eventually return to society in addition to being sentenced to death immediately. For criminals, the longer the isolation time and the higher the isolation degree, the lower the possibility of re-socialization, and the greater the possibility of committing crimes after re-entering society. And community correction just overcomes this defect of imprisonment correction. Community correction puts criminals in a socialized environment, so that they can bear family and social responsibilities as much as possible, and on this basis, they are given targeted psychological guidance and behavioral norms, so as to promote criminals to form a healthy social personality and realize re-socialization, so that criminals can finally return to society as ordinary members and avoid the appearance of "prison personality" and "prisoner personality" characterized by negative obedience, serious loss of self-confidence and enterprising spirit that prison correction may bring. Secondly, prison correction is the backing and guarantee of community correction. Community correction does have advantages, but it also has limitations in application. This is because putting criminals into the community must consider the safety of the community, and it is only possible to apply it on the premise that the criminals themselves feel less guilty and less dangerous. On the other hand, if some criminals with high personal danger, such as violent crimes, are also placed in the community, it will not only prevent crimes, but will condone them. In addition, in order to ensure the effect of community correction, it is necessary to build a bridge between community correction and imprisonment correction, such as the provisions of China's criminal law on the re-imprisonment of criminals who violate the regulations. This can not only promote the positive reform of criminals, but also make community correction boldly applicable without "worries". To sum up, correction is an idea, and the choice of correction place and content directly reflects the application order of punishment from heavy to light, and there is a gradual transition transfer order in the correction mode. Community correction is not an isolated system, nor is it a measure to play its corrective function in isolation. The similarity of correction goals shows that community execution and prison execution are interrelated unity. The establishment of community correction relative to imprisonment correction can provide a broader space for crime prevention. From the characteristics of imprisonment correction and community correction, imprisonment correction closes the door to society for criminals, while community correction opens the door to society for criminals. The systematicness and continuity of correction must be taken into account between the two correction systems. Through the complementary effect of the two systems, the execution resources should be rationally allocated to improve the efficiency of punishment and reduce the execution cost. Third, further promote the rationalization of penalty allocation structure. The Criminal Law Amendment (VIII) clearly stipulates the applicable types of community correction, namely, control, probation and parole. In this regard, some scholars pointed out: "This community correction is written into the criminal law, which means a major change in China's penalty system and execution system, that is, the penalty mode controlled in China's criminal law is changed to community punishment, thus reconstructing the main part of China's penalty system with life imprisonment, freedom punishment and community punishment; In addition, probation and parole are used as channels to link community punishment with free punishment and life imprisonment. (Liu Xianquan: 20 10 1 1.9 Procuratorate Daily) There is no community correction in the traditional penalty system in China. Whether this kind of community correction is written into the criminal law can be regarded as creating community correction and making it a penalty alongside life imprisonment and freedom punishment needs further study. However, the introduction of community correction has really promoted the rationalization of the penalty structure in China. Take residential surveillance as an example. As a non-custodial penalty, public surveillance has not played an effective role in judicial practice. Although its provisions are extensive (about 1/4 of the total number of crimes), the application rate is extremely low. According to the figures released by the Supreme People's Court, in 2003, the national courts sentenced 730,355 people to criminal punishment, including 1 1508 people, accounting for 1.58%. In 2004, the national courts imposed criminal penalties of 75,2241person, of which12,553 person was sentenced to control, accounting for1.67%; In 2005, the national courts sentenced 829,238 people to criminal punishment, among which 14604 people were sentenced to control, accounting for 1.76%. The reason is not that public surveillance punishment as a kind of punishment itself is unreasonable, but mainly that there are problems in the execution content of public surveillance punishment itself. According to Article 39 of China's Criminal Law, criminals sentenced to public surveillance have only five obligations, and these five obligations treat criminals as negative objects. As a penalty execution method that restricts freedom, the simple provisions of the five obligations are in sharp contrast with the severity of prison imprisonment, and it is difficult to effectively reflect the punitive nature of control and mobilize the enthusiasm of criminals for reform. The inspection and supervision obligations of probation and parole are also poorly implemented, and even many people mistakenly think that the defendant will be "fine" after being sentenced to probation. In fact, the investigation of probation offenders is not only an important link to correctly implement the probation system, but also an important aspect to maintain a good social order. The lack of "supervision" and "investigation" reduces the "sensitivity" of punishment, and it is difficult to cause due psychological pressure and necessary behavioral constraints on criminals. These problems eventually lead to control, probation and parole becoming the punishment methods that judicial organs are unwilling to adopt. For crimes that can be sentenced to both fixed-term imprisonment and public surveillance, they are generally sentenced to fixed-term imprisonment, which leads to an imbalance in the structure of crime and punishment. Therefore, in order to give full play to the positive role of control, probation and parole in correcting criminals and reducing penalties in China, it is necessary to improve their contents in legislation. The Criminal Law Amendment (VIII) clearly stipulates that community correction should be applied to control, probation and parole, which makes the execution of non-imprisonment punishment substantive and the application effect of control, probation and parole will be improved. Judging from the results of the pilot work of community correction in recent years, the situation of "probation is fine" has gradually changed. The legislation of community correction will further promote the rationalization of China's penalty structure, provide greater development space for China's criminal policy of combining leniency with severity, promote the implementation of non-imprisonment penalty inspection, truly play the role of control, probation and parole, and effectively embody the criminal policy of combining leniency with severity in the execution of non-imprisonment penalty. Four. Urging the introduction of supporting legislation for community correction as soon as possible In countries where community correction is carried out, generally speaking, the criminal law and criminal procedure law have clear provisions on the types of penalties, the application and execution system of penalties, the applicable procedures and steps of various community correction measures, and the rights and obligations of legal subjects involved in criminal execution. From 2003 to now, in terms of system norms, there are only the Notice on Launching the Pilot Work of Community Correction jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice in July 2003, the Interim Measures for Community Correction of Judicial Administrative Organs formulated by the Ministry of Justice in May 2004, and the "On Expanding Community Correction" jointly issued by the two academies and departments in June 5438+ 10, 2005. In the local pilot work, the system of standardizing the leadership system and working mechanism of community correction, the system of connecting and cooperating with relevant departments, the basic flow of community correction work and the daily management system within the department have been established. It is true that all these have made beneficial explorations for the establishment and development of community correction in China and accumulated some experience for the legislation and in-depth development of community correction. There are two main reasons why there has been no formal legislation on community correction in China: First, there is no unified view on the actual situation of community correction abroad, such as community correction in the United States. Although it is regarded as a penalty in terms of relevant regulations, it is more embodied as a non-custodial execution in practice. The nature of community correction is not only the execution of non-imprisonment penalty, but also the implementation of various non-imprisonment measures and correction projects. As an independent penalty, community correction in Britain contains a series of community correction orders. Japan regards community correction as a safety measure, which mainly includes probation, parole and placement of parolees, as well as supervision, correction and protection activities during probation and parole. Secondly, influenced by the complexity and diversity of foreign legislation, there are different theories in China. Such as "criminal law enforcement activities", "non-imprisonment execution methods and treatment measures", "new trends in criminals' treatment", "execution, correction and welfare nature", "security measures and criminal policy" and so on. There are different opinions on theoretical research, which makes some basic theoretical problems of community correction unclear and the legislative basis is not very solid. Therefore, in the introduction of community correction, China has not taken the lead in legislation, but adopted the policy of "practice first and then legislation", and legislated according to the necessity and feasibility of community correction in practice, which is in line with the Marxist principle of "theory comes from practice". Judging from the specific situation of community correction in China in the past seven years, as an executive measure of control, probation and parole, community correction has effectively reduced the recidivism rate of criminals, helped criminals return to society and created a harmonious social atmosphere. At this point, the status of community correction as a measure of control, probation and parole execution has been clarified. Therefore, the Criminal Law Amendment (VIII) writes "community correction" into the criminal law, which conforms to China's reality and affirms the nature of community correction, and will certainly promote the improvement of supporting legislation on community correction related systems such as specific project setting and community correction team building. Taking the content of community correction as an example, according to "Opinions on Trial Community Correction in China" jointly issued by the "two academies and departments" in September 2009, the provisions on the content of community correction can be summarized into three aspects: first, the education and correction of community prisoners; The second is the supervision and management of community prisoners; Third, help prisoners in the community. Although the above three aspects put forward requirements for the content of community correction, they are still abstract principles and norms, which does not mean that community correction has specific and clear contents. Because education correction, supervision and management, and helping people in difficulty are not the exclusive contents of community correction, imprisonment correction also needs education correction and helping people in difficulty, so from the content point of view, in addition to the change of execution place, the key lies in how to use the power of the community in content. Based on how to use community power, the content of community correction can be understood from two aspects, one is "strictness" and the other is "leniency". From the perspective of "leniency" and the establishment of school education, community correction should be an open system, and specific legislation can be supplemented by other administrative laws. However, from the strict point of view, the project of community correction needs to be confirmed by criminal legislation because it may involve the restriction of "personal rights". For example, at present, public welfare work is generally organized for community prisoners in judicial practice, but there is no similar provision in legislation. Therefore, how to combine reeducation through labor needs to be further clarified through legislation. In short, only by writing community correction into criminal law and establishing its criminal law status can a series of supporting measures for community correction be legally followed. The provisions of the criminal law are bound to require the rapid introduction of supporting measures to cooperate. Therefore, after the criminal law stipulates the community correction system, a systematic community correction law is bound to make people look forward to it. V. Promoting the unification of the power of execution "Criminal Law Amendment (VIII)" deleted the stipulation that the public security organ is the subject of controlling execution, probation and parole supervision. From the legislative reality, the subject of community correction is still in a "blank" state. The solution of this problem needs to be explained in combination with the special background of community correction in China. This stems from the reality of "double subject" in the pilot work of community correction in China, which has caused many practical problems in practice and has been criticized by scholars. The legislator's original intention here is to deny the dual-subject model, but there are three theoretical views on which subject should be implemented: by the public security organ, by the judicial administrative organ, or by establishing a brand-new institution. Public security organs, as the management and guarantee organs of national public safety, have a heavy task, so it is really difficult to entrust them with community correction. In addition, from the point of view of promoting the contact between criminals and the community, the investigative nature of public security organs determines that there are sharp emotional oppositions and contradictions between them, and criminals will have a strong sense of exclusion because of the investigation, detention and arrest of investigators, which shows that public security organs are not suitable for community correction. Judging from the research on the unification of executive power, most scholars agree that unification should be carried out by the judicial administrative department. In other words, community correction should be implemented by judicial administrative organs. The reasons are as follows: First, from the perspective of theoretical research, the implementation of community correction by judicial administrative organs conforms to the conclusions of theoretical research. For a long time, in the distribution of criminal judicial functions, a consensus has been reached that the powers of investigation, prosecution, trial and execution should be exercised by public security, procuratorial, judicial and judicial administrative organs respectively. It is consistent with the theory of community correction implemented by judicial administrative organs. Secondly, from the actual situation, it is also in line with the reality of China to carry out community correction by judicial administrative organs. Judging from the present situation of the functions and responsibilities of judicial administrative organs in China, judicial administrative organs in China have the functions of penalty execution, resources and experience in managing and correcting criminals, and can meet the requirements of "technicality" and "professionalism" in correction without starting from scratch. In addition, for probationers and parolees, community correction is facing the problem of connecting with imprisonment correction. The unification of the two correction systems is conducive to the continuous and sustainable educational reform of prisoners, which can achieve better correction benefits and reflect the overall efficiency of the system. Based on this, countries all over the world have gradually unified their executive power. Therefore, empowering judicial administrative organs to implement community corrections and bringing prison execution and community corrections into a unified power system will help strengthen the connection and interaction between them and maximize the benefit of execution, which also echoes the author's view of establishing two major correction systems mentioned earlier. Of course, it goes without saying that judicial administrative organs also need the cooperation of public, procuratorial and legal organs when implementing community correction.