I have won the title of "lawyer industry civilized unit in Jiangsu province"
The Justice Bureau of Yancheng City rates the director of the city's law office to visit me
I have been awarded the "65" middle term advanced collective title of Nanjing
Director Liu Hong was invited to give a special lecture on the units directly under the Nanjing Municipal Health Bureau
All lawyers learn "four in" the spirit of the plenary session
Jiangsu Liu Hong Law Firm held a series of training lawyers
The Realistic Dilemma and the Way to Perfect the Criminal Reconciliation System in China
"Criminal Procedure Law" on the provisions of the system of criminal reconciliation of China's public prosecution case reconciliation of the preliminary provisions of China's criminal justice reform is a major step forward. The author in this article on the system to do the actual operation of the following assessment, the supply side to correct, to initiate.
First, the real dilemma of criminal reconciliation system
The criminal reconciliation system has created a precedent for reconciliation of public prosecution cases in China, which is in line with the trend of world criminal justice reform, but it may also encounter some realistic dilemmas in the concrete application process. Combined with the actual situation, I believe that the actual difficulties may be encountered mainly reflected in:
1, criminal reconciliation has to fulfill the risk
In judicial practice, although some of the victims and the victims reached a settlement agreement, but the agreement does not necessarily immediately perform. If the perpetrators are fulfilled immediately after the settlement has been reached, the effect of criminal reconciliation is initially achieved; but there is also a great deal of postponement or deferral in post-reconciliation in judicial practice, where there is a certain risk of criminal reconciliation The If the procuratorial organ does not make a decision before the agreement is fulfilled or if the judgment organ has made a judgment before the agreement has been fulfilled, the prosecution will not be able to initiate the case if the victim has the capacity to fulfill the agreement and refuses to honor the agreement The procedure of criminal responsibility for the perpetrator. In this way, not only the interests of the victims did not receive due protection, but also the criminal reconciliation also evolved into a criminal suspect or defendant to escape the punishment of the "umbrella", and ultimately with the original intention of criminal reconciliation system runs counter to.
2, criminal reconciliation is easy to be mistaken for "money to buy a pen"
Criminal reconciliation from the early to the present to the legislative level, has been accompanied by some controversy. Many people believe that criminal reconciliation provides an opportunity for those who are not guilty of committing a crime - the money can not go to jail. The famous Hangzhou drag racing case the two sides reached a 1.13 million yuan of high civil compensation agreement, the perpetrators Hu Bin was sentenced to three years of disciples. The case is also referred to as "money to buy a pen" typical. China University of Political Science and Law Associate Professor Liu Cheng condemned that the market economy, the high amount of money compensation may be to compensate the victim damage, soothe the victims and their families the most effective means of trauma. However, Wu Hongyao, associate professor of the Institute of Procedural Law, China University of Political Science and Law, said that although there was no legal obstacle to reconciliation between the victim and the victim on the issue of compensation, the light of the " Causing people to "buy money" question or doubt. Reconciliation often becomes the process of bargaining through the presenter, and the suspect and the victim rarely reflect themselves from the heart, understand each other, once the amount of compensation is not good, the settlement will fail. In this way, reconciliation of the "tolerance, harmony," the essence of the grasp is not a good grasp, but also led to social reconciliation that is 'money to buy the sentence' misreading.
3, criminal reconciliation may lead to abuse of power
For criminal cases, the people's procuratorate in the stage of the prosecution should decide whether to prosecute according to law, the law must be prosecuted, should be submitted to the court in accordance with the prosecution proceedings, the court in the trial process must also impartial judgment. However, under the criminal reconciliation system, the judiciary often has a greater discretionary space. For example, the Procuratorate in accordance with their own provisions, to achieve their own point of the so-called "reconciliation" requirements of criminal cases do not sue, in fact, invisible to expand their own powers, not trial, to avoid the court's powers The For the court, they can leniently punish the defendant for the case of reconciliation, and further expand the discretion of the judge, making the case "more maneuverable" and "more humane". Therefore, the "reconciliation" as a criminal case of non-prosecution conditions or lenient punishment conditions, which may be a very small number of legal concepts of weak judicial personnel abuse of power, to create self-interest to create conditions, it is also very easy to criminals to escape the law Sanctions, and ultimately is not conducive to China's long-term development of criminal reconciliation system.
Second, the criminal reconciliation system to improve the path
The dilemma that the criminal reconciliation system may encounter in practical application puts forward higher standards and demands to legislators, law enforcement and supervisors. This requires concerted efforts by all parties to improve the system of criminal reconciliation and create the conditions for maximizing performance The
1, from the perspective of legislators, improve the criminal reconciliation system legal provisions
Improve the criminal reconciliation system The legal provisions mainly cover two aspects: First, the establishment of the victim national compensation system. In the process of actual reconciliation, the victim is willing to compensate the victim and the victim also expressed his understanding, but often because the perpetrators and victims of economic conditions are not optimistic, leading to the two sides can not reach a criminal reconciliation. In this case, the state should consider the implementation of assistance to victims of poor economic conditions in order to avoid poverty because of the objective can not reach a criminal reconciliation, resulting in the original can repair the social relations can not be repaired, can resolve the social contradictions can not be resolved. On the other hand, the victim compensation system is also the specific requirement of the principle of equality before the law in criminal reconciliation, that is, the difference in the applicable law is not caused by the economic conditions. At the same time, in order to prevent the state in the implementation of the rescue process of fraudulent compensation situation, on the one hand the parties to the family income situation, the degree of poverty to conduct a rigorous review, on the other hand can also require the victim to pay a certain percentage of relief payments to Enhance its sense of responsibility. Second, improve the non-penalty approach. For some criminal cases to achieve criminal reconciliation, the current legal provisions of the non-penalty treatment is still relatively limited, not comprehensive, can not get the warning, education role. It is recommended to increase non-penalty penalties such as social services and labor compensation. Such as a traffic accident in cases of criminal reconciliation, may consider ordering the infringing person to travel to a crowded place or during peak hours to assist in the maintenance, diversion of traffic or cleaning of fence and other transport facilities; for the case of minor injuries to criminal reconciliation, Consider ordering the perpetrator to take care of the follow-up life of the victims of hospitalization or hospitalization at a given time within a certain period of time. These non-penal measures such as social services and labor compensation tend to make the perpetrators more memorable, and are also a spiritual consolation to the victims, and have a warning effect to the public and can play a role in the combination of general prevention and special prevention The
2, from the perspective of law enforcement officers, to strengthen the conditions of criminal reconciliation cases
Criminal reconciliation is the "money to buy a pen" or "money to buy understanding" argument, is the judicial organs to apply the criminal reconciliation system misunderstanding. In order to eliminate misunderstandings and doubts and ensure the smooth implementation of criminal reconciliation, we need to focus on two aspects: first, strictly enforce the scope of the criminal settlement of the legal provisions of the case. Even if the parties have voluntarily settled a settlement for a criminal case, if the case is not a case within the scope of article 277 of the Code of Criminal Procedure, the settlement between the parties is still invalid. Thus, only a criminal settlement within the statutory limits may have a corresponding legal effect. Second, to strictly guarantee the voluntary nature of criminal reconciliation. Because the criminal reconciliation is based on the parties are voluntary on the premise of any party does not agree to be difficult to achieve. Among them, the understanding of the victim is the most important reconciliation factors, even if the defendant side "with money to smash", as long as there is no understanding of the victim side, or serious criminal circumstances, causing serious injuries, or even death, or unable to reach a criminal reconciliation. In the actual settlement, the judiciary should play a function, strengthen supervision, for the application of reconciliation and reconciliation of the case should pay attention to listen to the views of the parties and related personnel, and effectively ensure the voluntary reconciliation, to prevent the "voluntary" situation. All in all, focusing on the wishes of the victims and safeguarding the rights and interests of the victims is the basic point and the biggest bright spot in the construction of the criminal reconciliation system. It is also a principle that the law enforcement officers must strictly follow in the criminal reconciliation.
3, from the perspective of the supervisor, to strengthen the supervision of criminal reconciliation cases
Only by placing the criminal reconciliation work under the supervision of the masses and the community, the promotion of justice by democracy, justice and justice should be achieved in order to make the criminal reconciliation work a positive and open sunshine road. First, the trial authorities to implement internal supervision. In the process of reconciliation of the case, the collegial panel should be a collective collegial case to prevent the "one speech" situation; strengthen the post-supervision, regular cases of settlement of the case of the entity and procedures to prevent the abuse of criminal reconciliation; focus on criminal reconciliation cases after the implementation of To ensure that the implementation of the settlement agreement is implemented. Second, the prosecution to strengthen the supervision of authority. Whether the case is suitable for criminal reconciliation, reconciliation of the way and the results should inform the prosecution and seek their views, and actively play the role of procuratorial organs supervision; cases of reconciliation of the case to be prosecuted to the prosecution, in order to facilitate supervision; Criminal reconciliation has always been through the criminal reconciliation to promote the disclosure of public affairs, through the openness of the public to promote the healthy development of criminal reconciliation. Third, discipline inspection and supervision organs to strengthen supervision and supervision. Through the regular investigation of the parties to the criminal reconciliation case visits, telephone surveys, etc., focusing on strengthening the handling of investigators, to prevent abuse of power, the abuse of power appears; Fourth, the people, the news media and other focus on extensive supervision. The judiciary should ensure that the criminal reconciliation case is open and timely, so that the people, the news media can actively participate in and play the role of extensive supervision, to promote the power to run in the sun. In short, in order to strengthen the effectiveness of criminal investigation, in the supervision and control, the criminal reconciliation of each procedure and links should pay attention to "strict", "transparent", "sunshine."
Building a socialist harmonious society is in the 21st century after the CPC Central Committee and State Council in accordance with national conditions, social conditions put forward targeted, humane, the overall goal of the struggle. Social Harmony is the Essential Attribute of Socialism with Chinese Characteristics. In the present part of the province, the influence of the minority cadres and the masses in some areas, the increase of the mass collective events and the increase of the petition, also highlights the importance of building a socialist harmonious society. Only by taking a more proactive approach to the problems of reality, resolving social contradictions and eliminating the doubts of the masses can we minimize the factors of disharmony and promote social harmony. The harmonious society as the basis of the long-term stability of the country, which covers a wide range, it is not only refers to the narrow "social" harmony, but also must include the rule of law harmony, judicial harmony. It is an inevitable choice for us to build a socialist harmonious society. It can be seen that the rule of law and harmony are indispensable links in the construction of socialism. The rule of law society and the harmonious society are the most important aspects of building a socialist harmonious society. The same. The new criminal procedure law is also advancing with the times, the harmonious factors into the latest legislation, the most typical than the criminal reconciliation system. The value proposition pursued by criminal reconciliation is highly consistent with the strategic conception of establishing a harmonious society in China. It is not only a concrete manifestation of implementing the criminal policy of temper justice with mercy, but also a necessary requirement for building a socialist harmonious society. Therefore, to protect the interests of victims as the core, to seek the victims, the legitimate rights and interests of the parties to protect the criminal reconciliation system for the construction of China's modern rule of law to add a new force. In order to better conform to the historical trend of building a harmonious socialist society, we should constantly enrich the theory and practice of criminal reconciliation under the existing legal system, so as to contribute to the construction of a harmonious society and the realization of the rule of law.
On the Obligation of Non - action as Crime