Control is an original penalty method in China, which came into being during the democratic revolution in China. After the founding of New China, the people's courts continued to apply this penalty method in trial practice, initially targeting only some counter-revolutionaries and corrupt elements, and then gradually applying it to other criminals. The Regulations on Punishing Corruption in People's Republic of China (PRC) promulgated by the Central People's Government on April 2 1952 stipulates that public surveillance is a penalty. The Criminal Law of People's Republic of China (PRC) (1979) formally brought public surveillance into the criminal system as a principal punishment. Although some people suggested that public surveillance be abolished when the criminal law was revised, the legislature did not adopt this suggestion, but continued to stipulate public surveillance as the main punishment in the revised criminal law.
The existence of public surveillance makes our country's penalty system more perfect, because as a penalty method to restrict freedom, it plays a link role between continuous deprivation of freedom and non-freedom punishment, making the structure of various punishments more compact and natural. At the same time, because control is not to detain criminals, the side effects of cross-infection of deprivation of liberty can be avoided. In addition, the control of making full use of social forces to reform criminals does not affect the work, labor and family of criminals, but is conducive to the reform of criminals and the stability of social order. Therefore, control, as an open penalty method, conforms to the international trend of penalty reform.
Criminal law of the people's Republic of China
Article 38 The term of control shall be three months or more and two years or less.
Criminals sentenced to public surveillance shall be executed by public security organs.
Article 39 A criminal sentenced to public surveillance shall observe the following provisions during the execution:
(1) Abide by laws and administrative regulations and obey supervision;
(2) Without the approval of the administrative organ, the right to freedom of speech, publication, assembly, association, procession and demonstration shall not be exercised;
(3) to report their activities according to the provisions of the executive organ;
(four) abide by the provisions of the administrative organs on the reception of visitors;
(five) to leave the city or county where he lives or to move, he shall report to the executing organ for approval.
Criminals sentenced to public surveillance should receive equal pay for equal work.
Article 40 When the execution period of a criminal sentenced to public surveillance expires, the executing organ shall immediately announce the lifting of public surveillance to himself and the people in his unit or residence.
Article 41 The term of control shall be counted from the date of execution of the judgment; If a person is detained before the execution of the judgment, one day of detention shall be reduced to two days of imprisonment.
2. Probation is an important criminal law system established by the criminal policy of combining leniency with severity, punishment and educational reform in our country. It is the embodiment of the application of this basic criminal policy in the criminal law system, and it is also the embodiment of the principle of relying on specialized agencies to combine with the people to combat crime in the specific application of punishment. The application of probation not only shows the negative evaluation of criminals and their criminal behavior by the state, but also shows a certain lenient policy towards criminals. On the basis of maintaining the effectiveness of the original sentence, giving criminals a chance to repent and turn over a new leaf is conducive to educating and reforming criminals and fully embodying the humanitarian spirit of our criminal law. The significance of probation system is also manifested in the following aspects:
First, probation helps to avoid the disadvantages of short-term free punishment and optimize the penalty function, which is in line with the concept of penalty economy. This is one of the positive effects of probation, which is determined by the basic characteristics of probation system, that is, conditional suspension of the execution of punishment. The specific application of probation can make criminals feel the deterrent of punishment and fear that probation may actually be implemented. In the case of no connection, they will show themselves more consciously, change their evil ways and strive for a bright future in the process of being inspected by a specific organ. Therefore, it avoids the disadvantages of social isolation, difficulties in returning to society and cross-infection among criminals brought about by the actual execution of short-term free punishment, and can better realize the functions of punishment, deterrence, education and reform in the most economical way.
Second, probation helps to better achieve the purpose of punishment. One of the purposes of punishment is to prevent criminals from committing crimes again. The main way to realize the purpose of punishment is to judge the criminal and execute the punishment. The probation based on the principle of individualization of punishment is to suspend the execution of punishment under the condition of sentencing and maintaining the possibility of execution. Whether the probation is revoked depends on the self-discipline of the probation offender, that is, on the subjective efforts of the criminal. In the social life dominated by self-discipline, it is conducive to prompting criminals to consciously restrain their behavior and obtain the special preventive effect of punishment. Compared with the execution of punishment by imprisoning criminals in prison facilities, the special preventive effect obtained in the imprisonment life dominated by heteronomy is relatively more scientific.
Third, probation is an important institutional guarantee to realize the socialization of punishment. Criminals whose family and social relations have been suspended can continue to engage in their original jobs to avoid the adverse effects on themselves and their families caused by the actual punishment, that is, they can perform their family and social obligations without being affected by their crimes; Make them feel the majesty of the law and the tolerance of the law, the state and the society, so as to consciously complete the reform task and receive better results than the actual punishment.
Criminal law of the people's Republic of China
Article 72 A criminal sentenced to criminal detention or fixed-term imprisonment of not more than three years shall be suspended. If, according to the circumstances of the crime and the criminal's penitence, it is really no longer harmful to society, a suspended sentence may be declared.
If a suspended criminal is sentenced to an additional punishment, the additional punishment shall still be executed.
Article 73 The probation period for criminal detention with probation shall be at least one year and at least two months from the original sentence.
The probation period of probation for fixed-term imprisonment shall be not less than the original sentence but not less than five years, but not less than one year.
The probation period of probation shall be counted from the date when the judgment is determined.
Article 74 Probation shall not be applied to recidivists.
Article 75 A criminal whose sentence is suspended shall abide by the following provisions:
(1) Abide by laws and administrative regulations and obey supervision;
(2) to report their own activities according to the provisions of the inspection organ;
(three) to comply with the provisions of the inspection organ on the reception of visitors;
(four) to leave the city or county where you live or to move, it shall be reported to the inspection organ for approval.
Article 76 During the probation period of probation, criminals who have been declared suspended shall be inspected by the public security organs, and their units or grass-roots organizations shall cooperate with them. If there are no circumstances stipulated in Article 77 of this Law, the probation period of probation expires, and the original sentence will no longer be executed, and it will be publicly announced.
Article 77 If, during the probation period of probation, a criminal who has been suspended commits a new crime or finds that there are other crimes that have not been decided before the verdict is pronounced, his probation shall be revoked, and a judgment shall be made on the newly committed crime or newly discovered crime, and the punishment to be executed shall be decided in accordance with the provisions of Article 69 of this Law.
If, during the probation period of probation, a criminal who has been declared suspended violates laws, administrative regulations or the supervision and management regulations of the public security department of the State Council, if the circumstances are serious, his probation shall be revoked and the original sentence shall be executed.
Reply of the Supreme People's Court on whether the time spent in custody of criminals before probation can be reduced.
According to the provisions of Article 77 of the Criminal Law, if a criminal whose sentence has been suspended is revoked, the time spent in custody before the probation is announced shall be reduced to the term of imprisonment.
Provisions of the Supreme People's Court on Correctly Applying Probation to Criminals of Corruption, Bribery and Embezzlement of Public Funds.
According to the relevant provisions of the Criminal Law, combined with the actual trial work, the following provisions are made on the application of probation in the trial of cases of corruption, bribery and misappropriation of public funds:
1. State functionaries who embezzle or accept bribes in an amount of more than 2,000 yuan but less than 10,000 yuan, if the circumstances of the crime are minor, can voluntarily confess and actively return the stolen goods, and do show repentance, can apply probation.
Two, national staff corruption, bribery 1 ten thousand yuan, except for voluntary surrender or meritorious service and other statutory mitigating circumstances, generally not applicable to probation.
If the amount of corruption and bribery of state functionaries is more than 10,000 yuan but less than 50,000 yuan, according to the specific circumstances of the case, the second paragraph of Article 59 of the Criminal Law shall be applied to mitigate the punishment, and if a person is sentenced to fixed-term imprisonment of not more than three years, probation is generally not applicable. If the crime is minor and the stolen goods are returned actively, which plays a key role in major production and scientific research projects, there are special needs, or there are other special circumstances, probation can be applied, but it must be strictly controlled.
Three, the following criminals who embezzle, bribe or misappropriate public funds shall not be suspended:
(a) criminal acts have caused great losses to the interests of the state, the collective and the people;
(2) Failing to return stolen goods or repent;
(three) criminal motives, means and other circumstances are bad, or the illegal money is used for speculation, smuggling, gambling and other illegal activities;
(four) the principal of a major crime or a combination of several crimes;
(5) Having been subjected to administrative punishment or criminal punishment for economic crimes;
(six) the property involved in the crime belongs to the national disaster relief, emergency rescue, flood control, special care and relief, and the circumstances are serious.
3. Parole refers to the system that some criminals who have been sentenced to fixed-term imprisonment or life imprisonment do repent after executing certain punishments, and will not endanger society again, and can be released in advance conditionally. Conditionality means that if a prisoner on parole meets certain conditions, it is deemed that the original sentence has been executed; If you don't comply with certain conditions, you will be put in prison to carry out the original sentence and even be punished for several crimes.
Parole system is the product of objective punishment theory. Parole system embodies the purpose of crime prevention from three aspects: (1) Parole system encourages criminals sentenced to fixed-term imprisonment or life imprisonment to repent actively and turn over a new leaf. Because of the parole system, free punishment actually has the nature of life imprisonment. Even if a criminal is sentenced to a longer sentence or even life imprisonment, he can be released from prison in advance as long as he earnestly abides by the prison regulations, accepts education and reform, and truly shows repentance. This not only actively encourages prisoners to repent, but also plays a preventive role in preventing them from committing crimes again. (2) Parole system can avoid unnecessary execution of punishment and make prisoners continue to repent and turn over a new leaf outside prison. Because parole is an "execution measure" to promote the socialization of criminals and give up the execution of the remaining sentence, the paroled criminals are supervised by the relevant authorities during the probation period, so that they can be reformed without executing the remaining sentence. (3) The parole system builds a bridge for prisoners to return to society. Because prisoners have served their sentences in prison for a long time and are completely isolated from society, it will inevitably lead to difficulties in adapting to society if they suddenly enter a completely free society from the state of deprivation of freedom at the end of their sentences.
Parole actually belongs to a transitional stage between the prisoner's life without freedom in custody and the completely free social life, which plays a positive role in preventing the prisoner from committing crimes again because he does not adapt to society.
Regarding the conditions for applying parole, according to Article 8 1 of the Criminal Law, parole must meet the following conditions:
(1) Parole can only be applied to criminals sentenced to fixed-term imprisonment and criminals sentenced to life imprisonment. Criminals sentenced to public surveillance are not detained, and there is no parole problem; Criminals sentenced to criminal detention do not need a parole system because of their short sentences; There is no parole problem for prisoners sentenced to death, and there is no parole problem for criminals sentenced to death with a reprieve. If there is, it will only happen after they are changed to life imprisonment or fixed-term imprisonment. Among the conditions for applying parole, there are exceptions, that is, recidivists and criminals sentenced to fixed-term imprisonment 10 years or life imprisonment for violent crimes such as murder, explosion, robbery, rape and kidnapping are not allowed to be released on parole.
(2) The conditions for applying the parole period must be that the prisoner sentenced to fixed-term imprisonment actually executed more than half of the original sentence; A criminal sentenced to life imprisonment has actually executed the original sentence for more than 10 years. On the one hand, this provision is to safeguard the seriousness of the law and ensure that sentenced criminals actually serve their sentences in prison for several years and get due punishment, education and reform; At the same time, only those who have been sentenced to life imprisonment or fixed-term imprisonment are actually sentenced to a certain term. After a period of reform, the executive organs and judicial organs can analyze the repentance of criminals and judge whether it will endanger society again, thus ensuring the accuracy of parole applications. There is also an exception to the applicable conditions of parole, that is, under special circumstances, with the approval of the Supreme People's Court, you can be exempted from the above-mentioned restrictions on fixed-term imprisonment. This provision embodies the unity of principle and flexibility. The so-called "special circumstances" here mainly refer to the special needs of national politics, national defense and diplomacy.
(3) The necessary condition for applying for parole is that the prisoner earnestly abides by the prison regulations, accepts education and reform, shows repentance, and will not endanger society after parole. Parole can only be granted if such conditions are met, and parole cannot be applied if the above-mentioned substantive conditions are not met, even if the object conditions and prison time conditions have been met. Whether to seriously abide by prison regulations and accept education and reform can be examined through the ordinary performance of criminals; Whether it is "true repentance and will not harm society after parole" can only be predicted by combining the actual performance of criminals. During the period of reform through labor, criminals have always abided by prison regulations and received education and reform. Through education, reform and study, they have a deeper understanding of their crimes, and are determined to repent and turn over a new leaf with practical actions, so as to ensure that they will not return to their old jobs and engage in illegal and criminal acts that endanger society after being released from prison. Generally speaking, it can be considered that they have repentance and will no longer harm society.
Under normal circumstances, the above three conditions of parole must be met at the same time, and both are indispensable; Parole shall not be applied if only one or two of the conditions are met.
Criminal law of the people's Republic of China
Article 81 If a prisoner sentenced to fixed-term imprisonment has served more than half of the original sentence, and a prisoner sentenced to life imprisonment has actually served for more than 10 years, conscientiously abided by prison regulations, received education and reform, and truly showed repentance, and can be released on parole if he no longer harms society after parole. Under special circumstances, with the approval of the Supreme People's Court, the above-mentioned restrictions on the execution of prison terms may be waived.
Recidivists and criminals sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment for violent crimes such as murder, explosion, robbery, rape and kidnapping shall not be released on parole.
Article 82 Parole of a prisoner shall be conducted in accordance with the procedures stipulated in Article 79 of this Law. No parole shall be granted without legal procedures.
Article 83 The probation period of fixed-term imprisonment and parole is limited to the sentence that has not been executed; The probation period of parole for life imprisonment is limited to ten years.
The probation period of parole shall be counted from the date of parole.
Article 84 A criminal released on parole shall abide by the following provisions:
(1) Abide by laws and administrative regulations and obey supervision;
(2) To report their own activities in accordance with the provisions of the supervisory organ;
(three) to comply with the provisions of the supervisory organ on the reception of visitors;
(four) to leave the city or county where you live or to move, it shall be reported to the supervisory organ for approval.
Article 85 A criminal released on parole shall be supervised by the public security organ within the probation period of parole. If the probation period for parole expires and there are no circumstances stipulated in Article 86 of this Law, it shall be deemed that the original sentence has been executed, and an announcement shall be made.
Article 86 If a criminal released on parole commits a new crime within the probation period of parole, his parole shall be revoked and he shall be punished for several crimes in accordance with the provisions of Article 71 of this Law.
If, during the probation period of parole, it is found that the paroled criminal has committed other crimes that have not been pronounced before the verdict is pronounced, the parole shall be revoked and the punishment for several crimes shall be combined according to the provisions of Article 70 of this Law.
If a criminal released on parole violates laws, administrative regulations or the provisions of the public security department of the State Council on the supervision and administration of parole within the probation period of parole, and does not constitute a new crime, his parole shall be revoked in accordance with legal procedures, and he shall be put in prison to execute the unfinished sentence.
Opinions of the Supreme People's Court on Several Issues Concerning Parole Cases (Trial).
According to the provisions of the Criminal Law, the Criminal Procedure Law and relevant laws, combined with the practical experience of the current parole work, we now put forward the following opinions on several specific issues in handling parole cases:
I. Parole of criminals with special family difficulties
If a prisoner's family has special difficulties, needs to take care of itself and requests parole, in judicial practice, the public security organ at or above the county level or the relevant department of the people's government must provide proof. If a prisoner does show repentance and no longer endangers society, and the local supervision conditions are met, he may be released on parole without the statutory execution period, and the provisions of Article 73 of the Criminal Law on special circumstances shall apply. However, first-time offenders, principal offenders, recidivists, recidivists and criminals with particularly serious crimes committed by criminal groups are not allowed to be released on parole.
Second, about the parole of juvenile offenders.
In order to further implement the Law on the Protection of Minors and implement the policy of education, probation and rescue for juvenile criminals, criminals who are underage at the time of committing a crime, show repentance during the execution of the penalty, and are no longer harmful to society, can be released on parole without being restricted by the statutory execution period, and the provisions of Article 73 of the Criminal Law on special circumstances can be applied. However, the parole of first-time offenders, principal offenders, recidivists, recidivists and criminals with particularly serious crimes should be strictly controlled.
Three, about the parole of the old and disabled criminals.
Parole for elderly and physically disabled criminals (excluding self-injury and disability) should pay attention to the actual performance of repentance. In judicial practice, an old disabled criminal who has been sentenced to fixed-term imprisonment and executed the original sentence for more than 1/2, or sentenced to life imprisonment and actually executed the sentence for more than 10 years, lost criminal capacity or can't take care of himself, and has a real life after parole can be released on parole according to law.
Four, on the calculation of the starting time of the execution of the original sentence of more than 1/2.
According to Article 42 of the Criminal Law, the term of fixed-term imprisonment shall be counted from the date of execution of the judgment; If a person is detained before the execution of the judgment, 1 day detention shall be reduced to 1 day imprisonment. Parole is applicable to criminals sentenced to fixed-term imprisonment, and the starting time for executing the original sentence of 1/2 or more shall be counted from the date of detention.
Five, about the probation period of parole for criminals with fixed-term imprisonment.
There should be an appropriate trial period for criminals on parole. According to the provisions of Article 74 of the Criminal Law: "The probation period of parole for fixed-term imprisonment is limited to the unfinished sentence, and generally it shall not be less than six months.
Six, about the parole of prisoners in detention centers.
According to the relevant regulations, criminals serving sentences in detention centers must be criminals sentenced to fixed-term imprisonment of less than 1 year, criminals whose remaining sentences are less than 1 year after the judgment takes effect, and some criminals whose remaining sentences exceed 1 year, which must be approved by the relevant departments due to special needs. In judicial practice, criminals who have been sentenced to fixed-term imprisonment of less than 1 year and the remaining sentence after the judgment takes effect is less than 1 year are generally not granted parole; For criminals whose remaining sentence is more than 1 year, if they meet the statutory conditions for parole, the detention center where the criminals are located shall put forward written opinions, which shall be reported to the people's court at the same level for ruling after being examined and approved by the competent public security organ.
Seven, about the interval of parole after commutation.
Parole after commutation, the general interval is more than 1 year; If parole is applied after a one-time commutation of fixed-term imprisonment of more than two years and less than three years, the interval shall generally not be less than two years.
After commutation, if a prisoner has made significant meritorious service or has special circumstances, he may not be restricted by the above interval.
Eight, on the handling of criminal behavior within the probation period of parole.
A criminal who is released on parole commits a new crime within the probation period, which refers to an act that is socially harmful and violates the criminal law and should be punished, including minor criminal acts. If a paroled person commits a crime within the probation period of parole, the people's court that originally ruled on parole shall revoke the parole in accordance with the procedure of trial supervision. If a new crime is exempted from punishment, it shall be put in prison to execute the sentence that has not been completed since the date of parole. If a new crime requires a penalty, the people's court that tried the new crime shall revoke the original parole and decide the penalty to be executed in accordance with the provisions of Article 75 of the Criminal Law.