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 Wysłany: Czw 9:32, 28 Kwi 2011 Temat postu: On the Construction of Criminal Reconciliation and |
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On the Construction of Criminal Reconciliation and Native
Abstract: Criminal reconciliation as a way to solve criminal cases, or style, from a sociological perspective, it has produced many countries in the West better results. China to learn from this and as a new idea, bound to China's current legislation and judicial practice have a profound impact. At the same time, due to the larger political context of the current is Keywords: Criminal reconciliation; building foundation; value analysis; building measures have any system has its specific context and conditions, criminal settlement system is no exception. With the current reform and opening up and economic development, many new crimes emerging, if all cases in the criminal law enacted by the state to adjust, and through legal proceedings to protect, then the pursuit of substantive justice and procedural justice with perfect logic This is unrealistic. There are two main reasons: the one hand, the stability of the law while preserving its advantages, but also there is a lag of weakness, many new criminal offense could not find a reasonable legal basis; the other hand, in practice , if we do not distinguish the cases have gone all the statutory procedures for reunification is not only unnecessary, but will also cause a huge waste of judicial resources. To this end, we need to learn from the successful experience of foreign countries to explore the construction of the criminal settlement in our country road. This paper tries to make light from the following aspects to the analysis. 1 The definition of the criminal settlement arising reconciliation, also known as the perpetrators and victims of the settlement (ie Victim-offender-reconciliation, called VOR) is after the crime, by mediator, to talk directly to perpetrators and victims and coordination, conflict resolution of disputes. The aim is to restore the harmonious relationship between perpetrators and victims, and to rehabilitation, social reintegration. Through face to face consultation, the perpetrators know the adverse consequences of their actions, and victims have the opportunity to the best audience - the perpetrators - to express their thoughts and feelings, thereby reducing the suffering caused by crime. In some cases, relatives of the parties, civil society and other staff will participate in the consultation being. In this consultation, the parties will discuss what happened, the impact of crime on their lives and feelings of other crimes. Eventually, they will try to reach a compensation agreement to repair the harm of crime. criminal origin of the thought of reconciliation can be traced back to the primitive society of private partitions compensation, but as a criminal thought and theory, which began in the mid-twentieth century, is the new criminal trend in Western countries, and legal values of the product changes . It produces two social background factors and their interaction effect, that the criminal protection of the victim-oriented policies and the trend's emergence as the center of the imprisonment of the offender to correct failure of policy. Born after World War II in particular, the new criminology: Studies of victims of crime as an important concept, because it highlights the main body of the victim status in the proceedings is conducive to truly achieve substantive justice and procedural fairness the perfect combination. But the criminal settlement in its first dozen years have not been fully agree with the criminal justice system, victims rights groups initially misunderstood the purpose of the criminal settlement, many people think that victims of crime in the talks between the two would cause the victim second injury, criminal reconciliation reconciliation goals will allow victims of crime who are not willing to forgive, in the face of American Bar Association, criminal settlement also suffered a cold shoulder. The twentieth century the seventies and eighties, the long-term settlement of criminal involvement and lack of authority slow development until the nineties, only to be universally developed countries according to a survey conducted in 1996 Umbreit, North America and Europe has more than 1,000 criminal reconciliation program, to date, the scale of the criminal settlement in the expanding use of the criminal settlement in many countries has become an important part of legal policy, criminal law reform in one direction. 2 Criminal build the basis of reconciliation in our country 2.1 based on the practice of criminal settlement system in China the criminal field, social phenomena and behavior, which affect people's lives in order, but also the people shaping the subtle order of concepts and communication methods, so its existence, for our current practice of building lay the basis for the criminal settlement system. Although the , including criminal cases. In short, However, they also have mutual collision. Because Precisely because Deeper side, the parties to choose the right, but it is in fact the unique lifestyle of our nation and the spiritual world of the product, and meets the inevitable trend of development of human society. 2.2 Criminal legal basis for reconciliation of the existing provisions of criminal legislation provides for the criminal purposes of reconciliation, the relevant institutional basis. Criminal one hundred and seventieth two articles: Republic of the Code of Criminal Procedure> number of issues of interpretation Unlike mediation, but they already have the basic framework of the criminal settlement, the implication of some of the criminal settlement values. Meanwhile, in the case of public prosecution, there is micro-system not to prosecute the crime. Second paragraph of one hundred and fortieth 二条 Code of Criminal Procedure clearly states: non-prosecution system. According to the above requirements, be reprimanded, ordered to repentance, apology and compensation for damages constitutes a crime not to prosecute the action of micro alternative measures. Offender's repentance, apology and compensation for damages in a criminal offender reconciliation in the form of responsibility are an important part of the settlement agreement. 2.3 criminal settlement of international environmental 2002 年 4 months, the United Nations Crime Prevention and Criminal Justice Committee at its 11th session held in Vienna community unanimously adopted the the basic principle Such as Germany, the pace of its relatively large step, it has been formally introduced juvenile criminal settlement system and criminal law. Japanese Ministry of Justice proposes to develop crime victim recovery system. In China, a member of the United Nations and is a big developing country, should from the restorative justice system and the value of the start, combined with China's specific national conditions and Establishment of a With international standards so that we can, and judicial success in drawing on Western theory and practice good experiences, enrich our legislative and judicial practice. 3 Construction of the criminal settlement in our country specific ideas 3.1 Despite the improvement of legislation in the private prosecution of cases, there have been the prototype of the criminal settlement, but the case for the prosecution to that the criminal settlement almost a blank, not a legal basis for this, Professor Chen Guangzhong Criminal Procedure Law in its claims on outcomes of change, clear the wishes and circumstances of the case, according to the law not to pursue criminal suspects, defendants lighter, reduce or waive penalties. system formation, but we should learn from the mature experience of foreign criminal settlement, because strengthen legislation to establish appropriate criminal settlement system with Chinese characteristics, so as to promote China to further improve the criminal justice system, and then better guide judicial practice. 3.2 clear the scope of the case because the complexity of criminal cases, and thus in the application of criminal settlement system, first of all, the principal should be clear that there are victims in criminal cases, and for not involving the victim, only national interests or social interests involved in criminal cases, is not appropriate for the criminal settlement system. Second, by analyzing the foreign criminal settlement system, our system of criminal reconciliation should also be locked in the scope of the case to misdemeanor cases and juvenile criminal cases, because of their subjective malignant and social harm, is relatively small. Conversely, if the felony criminal settlement system applies, it would be a serious threat to the survival of all order, it is difficult to achieve social justice. Western countries, the current practice of the criminal settlement began to expand the crime of violence,herve leger uk, for our part, taking into account the one hand, because of serious violent crime against the results of objective and subjective malignant large, application of criminal settlement to resolve, in the difficult process of reconciliation avoid violence, threats and other improper factors, adding that the victims have even been more painful injuries; the other hand, the traditional view of public opinion and the victims of extreme hatred for the perpetrators, and the operation of all aspects of the imperfect stage, therefore, at this stage it should not be included in the scope of the criminal settlement, pending various conditions to mature and then expand to a serious violent crime. 3.3 for specific stages of the criminal settlement Western countries in the investigation before the criminal settlement, investigation, prosecution, trial, can be run for reconciliation, but the special circumstances in our country, I believe that reconciliation can be criminal based on the premise of voluntary acts can in the investigation, prosecution and trial stages, but may not to force approach requires reconciliation, and in all stages of the power at its disposal to carry out the necessary restrictions to prevent abuse of power. 3.4 to strengthen the system of judicial supervision have any beginning, not perfect, as a mechanism for handling the criminal settlement, the supervision and guidance is essential. Only by strengthening the judicial supervision, in order to prevent the abuse of power, to prevent the indulgence of crime in order to avoid adverse social impacts. According to China's actual situation, the current judicial supervision of the Control Yuan main playing times can be responsible by the people, or is the implementation of the concern, as the perpetrators to pass a positive way to correct the damage to others and even countries to truly return to society, not endanger the interests of others. In short, the construction of the criminal settlement system is not easy, it requires continuous exploration in practice and research, according to the actual continuously be improved. Only by upholding the unity of theory and practice in order to give full play to its resolve social conflicts, building a harmonious society the function of the judicial system. |
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