The applicable conditions of probation are too general and difficult to operate. Article 72 of China's criminal law stipulates: "A criminal sentenced to criminal detention or fixed-term imprisonment of not more than three years may be suspended if he does not endanger society again according to the criminal's criminal circumstances and repentance." The following is what I arranged for you. I hope I can help you. For details, please visit (www.oh 100.com/bylw).

Problems existing in China's probation system and countermeasures.

catalogue

I. Status of Probation System in China ........................................................................................................................................ 1

(1) Several crimes for which suspended sentences are more applicable

(2) The application of probation is related to the fine.

(3) Probation of juvenile delinquency is common. ................................................................................................................................................................

Second, the problems existing in China's probation system

(1) Applicable conditions of probation

(2) Issues concerning the application procedures of probation.

(3) Probation system

Three. Perfection of China's Probation System

(1) Perfection of the applicable conditions of probation

(B) the improvement of probation application procedures

(iii) Improve the probation system. .......................................................................................................................................................................

Four. Conclusion ............................................................. 13

Refer to ............................. 15.

Problems and Countermeasures in China's Probation System

This paper focuses on the analysis of the current situation of China's probation system and various specific problems and drawbacks in its application, inspection and supervision, which affect the seriousness of the law and the fairness of the judiciary. In view of the problems existing in China's probation system, this paper puts forward standardized and perfect suggestions from the aspects of applicable conditions, applicable procedures, inspection and supervision system, etc., so as to effectively curb the abuse of probation and give full play to its significance.

Keywords: probation system, present situation, applicable conditions, applicable procedures, inspection and supervision

In recent years, the judicial concept of light punishment in China, as a suspended sentence, has undoubtedly become the darling of China's current penalty system. Probation refers to the penalty system that criminals who have been sentenced to a certain penalty are conditionally not executed within a certain period of time. It is characterized by declaring that the penalty will not be executed while sentencing, but reserving the possibility of executing the penalty within a certain period of time. On the one hand, China's current probation system has achieved remarkable results in judicial practice and made positive contributions to the development of punishment in China. On the other hand, it is undeniable that there are still various specific problems in the specific implementation, how to implement and how to supervise probation. This often makes the application of probation not applicable, but not applicable, which leads to the failure of the purpose of probation, and even some judges and places regard probation as a refuge for the rich and powerful, which is extremely harmful.

First, the status quo of China's probation system

Probation system is a special penalty system and an important human rights system in China. It embodies the principle of combining leniency with severity and combining punishment with education, and plays an important role in the implementation of China's criminal law. In recent years, the proportion of probation applied by Chinese courts in public prosecution cases has increased year by year. According to the statistics of a city court, the number of people who apply probation accounts for 8%, xx is 15% and xx is 3 1%, which is suspected of abuse. 、

(1) Several crimes for which suspended sentences are more applicable

1, duty crime. According to statistics, the proportion of suspended sentences applied by Enping court in such cases is as high as over 90%.

2. Crime of causing traffic accidents. The crime of causing traffic accidents is a crime of negligence. The subjective malignancy of most criminals is relatively small. After committing a crime, they can report the case in time, actively help the victims and compensate their economic losses. They have obvious repentance. The application of probation will not harm the society, but is conducive to safeguarding the economic interests and social stability of the relatives of the victims. After the judgment, the public has a high degree of recognition, accounting for 25% of the total number of discontinued cases.

3, intentional injury, probation application rate is also very high, the court in sentencing, linked to civil compensation, to decide whether to apply probation.

4, other crimes against property, such as theft and other crimes against property, the defendant's theft did not reach a huge amount, the court often sentenced to probation.

(2) The application of probation is linked to fine punishment.

The penalty of fine is the people's court's judgment on criminals, and the judge takes the amount of fine and its arrival rate as the conditions for deciding to apply probation. Sometimes it will mislead some people who don't know the law and make them think that it doesn't matter if they break the law and commit crimes. As long as they pay the money, they don't have to go to jail, which has a bad social impact. Mainly because the local finance is poor, the court relies on returning fines to make up for the lack of funds.

It is more common to apply probation to juvenile delinquency.

In the first half of xx, the cases of probation for juvenile offenders accounted for 70% of juvenile crimes, much higher than in previous years. Juvenile delinquency is a legal lighter or mitigated circumstance, and there are many cases of mitigated punishment in judicial practice. If there are minor circumstances such as surrender and accomplice, the court will generally give a suspended sentence. Among the juvenile crimes that are subject to probation, there are also some cases where the statutory punishment is more than three years, but the probation is applied because of statutory mitigating circumstances. With the promulgation of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Juvenile Criminal Cases, it is believed that the suspended sentence of juvenile offenders will continue to rise in the future.

In a word, probation is one of the important penalty systems in China. Correctly applying the probation system can not only avoid the disadvantages of short-term free punishment and reduce social contradictions, but also help to build a harmonious socialist society. Abuse of this system will have the opposite effect. Judging from the current situation of the application and implementation of the probation system in China, there are still problems and defects that need to be further improved.

Second, the problems existing in China's probation system

(1) Application of probation conditions.

The applicable conditions of probation are too general and difficult to operate. Article 72 of China's criminal law stipulates: "A criminal sentenced to criminal detention or fixed-term imprisonment of not more than three years may be suspended if he does not endanger society again according to the criminal's criminal circumstances and repentance." Article 74 stipulates: "For recidivists, probation is not applicable." As can be seen from the above provisions, the applicable conditions of probation can be summarized as the following three aspects: (1) It must be the penalty of being sentenced to fixed-term imprisonment of less than three years or criminal detention. (2) Not a recidivist. (3) According to the circumstances of the crime and the performance of repentance, it is considered that the application of probation will no longer harm the society. This provision of the criminal law has not made clear provisions on the specific circumstances of probation, the performance of the criminal's repentance, whether it will not harm the society again, and so on. In particular, those that are not really harmful to society are not easy to grasp in practice, which affects the application of probation to a certain extent. There is no legal basis for judicial organs to apply probation, which is likely to cause judges to be at a loss when considering whether to apply probation to criminals. At the same time, it will easily mislead the judge's discretion to abuse the penalty excessively, and it will probably provide an excuse for some lawbreakers, which does not conform to the unification, openness and fairness of sentencing standards, and will easily lead to the application of probation to some criminals who should not apply probation, but not to some criminals who should.

Probation application procedure.

Procedural justice is the most powerful guarantee to realize substantive justice. Procedural justice can eliminate improper intentions in the process of law selection and application, and also ensure the accurate application of law. Although some judicial interpretations in China have mentioned the procedural content of probation application, there is no procedural norm in China's probation system, which greatly affects the fairness of probation discretion and leads to many problems in judicial practice.

1, lack of transparency. In China's judicial practice, whether a criminal is sentenced to probation must be discussed and evaluated by the collegial panel and the judicial committee, and whether the criminal meets the three conditions of probation, and then a suspended sentence is made. However, the discussion and decision-making process of the collegial panel and the judicial Committee is conducted in secret, and no one knows how to predict the standard of "no longer endangering society", which is unconvincing and difficult for society to understand. So that a "black box operation" was formed.

2. Lack of effective supervision. The decision-making power to apply probation is only in the court, which is one aspect of the court's judicial power. However, any power must be effectively supervised, which will inevitably lead to corruption. Although the procuratorial organ can lodge a protest, the procuratorial organ has a vague understanding of the application of probation, and rarely lodges a protest against cases that can and cannot be suspended, so this right of protest is not an effective supervision over the application of probation.

3. Lack of discourse power and social participation rights of procuratorial organs and public security organs. In judicial practice, before probation is applied, there is a lack of the right to speak of procuratorial organs and public security organs, and the right to participate in and supervise society. Just handling a case by case, as long as it meets the statutory conditions, probation is applicable, and probation is also applicable to some defendants who have no financial resources and usually do not perform well. The social effect is not good, which is not conducive to the supervision and reform of probation offenders.

Probation system.

The criminal law 1997 stipulates that the investigation of probation offenders shall be carried out by public security organs with the cooperation of their units or grass-roots organizations.

. There are many problems in this supervision and management mechanism in practice:

1, the supervision and inspection institutions are not perfect. Article 76 of China's Criminal Law stipulates that criminals who have been suspended shall be inspected by public security organs during the probation period, and their units or grass-roots organizations shall cooperate. But in fact, due to the shortage of public security organs and heavy tasks, the probation investigation institution has not been established, and there is no time to handle probation investigation. Usually, the court visits and inspects probation offenders on behalf of the public security department. In addition, the units and grass-roots organizations working on probation are weak, and their obligations to assist in execution are not clear, and even the sentencing situation and needs of criminals are not clear. They also believe that criminals are acquitted, which makes probation investigation almost a blank area.

2. Delivery supervision is not in place. After probation, the court only serves the notice of execution to the public security organ, and is not responsible for the execution in place; Some let the probationer report to the local police station after making a judgment; Some delay the delivery of normative documents to the enforcement agencies after the judgment takes effect; Some probationers intentionally or unintentionally don't report for duty, but go out to work, which leads to probation offenders losing control. Due to the poor connection of supervision procedures, in practice, grass-roots police stations failed to fully and timely grasp the situation of probation prisoners in their respective jurisdictions, which affected the development of supervision and procuratorial work.

3. The current investigation method is not suitable for the new situation. Nowadays, the crimes committed by floating population are increasingly prominent, and the social control mechanism based on household registration, grain registration and work unit has been unable to effectively realize the functions of management, inspection and assistance and education for probation offenders.

Thirdly, the perfection of China's probation system.

(A) the improvement of the applicable conditions of probation

1, the conditions of probation should be detailed, clear and specific. The applicable conditions of probation, that is, which conditions can be applied to probation, play a decisive role in whether probation is applied when sentencing. At present, China's criminal law stipulates that according to the criminal's criminal circumstances and repentance, probation will not harm society again as the applicable condition of probation in China.

The plot of a crime refers to the criminal's subjective viciousness and aggressiveness to others, as well as the objective harm and loss caused by the criminal behavior, so we should comprehensively consider all aspects of the actual situation when deciding whether to apply probation. If the criminal's subjective malignancy is deep and objectively causes great harm, if the execution is still suspended, the justice of the law may be lost. Therefore, when deciding whether to apply probation, the main content of investigating the circumstances of the crime is the subjective malignancy of the offender and the objective harm caused by the crime. Based on this standard, when applying probation to criminals, the objects to be investigated are: (1) criminal motives that can be understood and tolerated. The criminal motive can reflect the subjective malignancy of travelers to some extent. For example, criminals who steal because of economic difficulties are less subjective and vicious than criminals driven by pleasure and wealth. For the former, we can consider probation more, but for the latter, we must carefully consider the adverse consequences that probation may bring to society. (2) negligent crime. In fact, negligent crime does not want to commit a crime subjectively, nor does it support the generation of harmful results. Therefore, it can be considered that even if the penalty is not actually executed, he will not commit the crime again, and more consideration can be given to probation for such crimes. (3) Excessive defense and crimes caused by excessive defense. If the crime is caused by excessive defense or excessive avoidance of danger, the perpetrator himself is less subjective and vicious, and the application of probation will generally not cause harm to society. (4) Interruption of crime, preparation of crime and partial attempted crime. Although the discontinued criminal committed the crime under the control of intentional psychology, his psychology changed during the crime. Crime preparation and attempted crime indicate that the objective harm caused by crime is not serious, and probation can also be considered.

The performance of repentance refers to the external reflection of the subjective mentality of criminals after committing crimes. Criminal acts are objective facts, and the attitude of criminals towards these facts is an important basis for conviction and sentencing in criminal trial activities. Only when the criminal truly realizes the harmfulness of criminal behavior and has the desire and performance to eliminate this harmfulness can it be shown that the criminal has learned a lesson from it. Repentance is manifested in the following categories: (1) reducing the harm to society caused by its crimes with positive behaviors. Such as actively assisting in the rescue, returning stolen goods, eliminating the influence, restoring the original state, and actively compensating for the harm caused by its criminal behavior; (2) Willing to accept the treatment and actively cooperate with the investigation. Including voluntary surrender, exposing accomplices, providing criminal clues, and assisting public security organs in solving cases.

After investigating the criminal's criminal circumstances and repentance, we should also consider whether it will harm society in the future if probation is applied to him. Social harmfulness is the standard of judging crime and non-crime, which will affect the criminal responsibility of criminals and the way of penalty execution. The prediction result of criminal's personal danger is related to the application of probation. Therefore, to establish a complete probation prediction system, it should include: (1) criminal history. (2) personal experience. (3) living environment. (4) The expected effect of applying probation to criminals. If you really want to make up for it by getting the chance of probation, such criminals will generally cherish the opportunity of probation, restrain their behavior, turn over a new leaf, and try to prove that they can turn over a new leaf and be a useful person to society. Therefore, it can be expected that applying probation to such criminals can achieve better results. (5) consistent behavior. (6) The criminal's physical and mental condition. Criminals who have lost their criminal capacity due to illness or disability can give more consideration to probation. On the contrary, criminals who are psychopathic, unable to control their emotions and addicted to a certain aspect, driven by abnormal psychology and emotions, or under the control of an addiction (such as drug abuse and alcoholism), are easy to commit crimes again.

2. Explicitly stipulate that probation is applicable and probation is not applicable, so that there are laws to follow. China's criminal law should stipulate whether to apply probation, so that judges can have laws to follow when considering whether to apply probation. The author thinks that the situation that "probation can be applied" in China's criminal law should be changed to "probation should be applied", specifically as follows: "If the first offender sentenced to fixed-term imprisonment of less than one year or criminal detention does show repentance and does not endanger social order, probation should be applied. The first offender is sentenced to criminal detention and fixed-term imprisonment of not more than three years, and sincerely repents. Under any of the following circumstances, the probation will not harm the society: (1) A minor with little subjective malignancy; (2) Crime is caused by self-defense or emergency avoidance; (3) the crime is suspended; (4) Those who have rendered meritorious service by surrendering themselves after committing a crime; (5) Those who have been coerced or tricked into participating in the crime; (6) Deaf-mute, blind and other disabled people who lose their ability to work and endanger society. Cases not subject to probation: (1) recidivist; (2) committing a new crime within the probation period of probation or parole; (3) committing several crimes at the same time; (4) Recidivism, instigator, ringleader and incorrigible in gang crimes; (5) The nature of the crime is serious or the influence is extremely bad. (6) Refusing to plead guilty after committing a crime.

3. Support and encourage judges to apply probation according to law. In fact, the standard of probation in criminal law, "probation will not harm society again", is a subjective judgment made by judges according to various factors. The judge who announced the probation, in the face of the person sentenced to probation, is very likely to commit another crime in the future. If this is attributed to the judge's misjudgment, it may affect the judge's enthusiasm for declaring probation for criminals, thus hindering the probation function. Therefore, in view of the possible problems in this respect, judges should be supported and encouraged to have sufficient factual basis to convince them that applying probation to criminals will not really harm society again. Even if the probationer commits another crime during the probation period and his probation is revoked, there is no need to investigate the responsibility of the original judge for misjudgment. On the other hand, it should also be stipulated that if the judge fails to examine the criminals according to the probation conditions stipulated in the Criminal Law and announces the probation when the criminals do not meet the probation conditions, thus causing the people sentenced to probation to endanger the society again within the probation period, he shall be investigated for the crime of dereliction of duty or abuse of power. On the one hand, it can supervise the abuse of probation by judges and enhance their sense of responsibility, on the other hand, it can also encourage judges to boldly apply probation according to law.

(B) the improvement of probation application procedures

It is necessary to add provisions on the application procedure of probation in China's criminal law, and put the probation discretion of the people's courts, the discourse power of procuratorial organs and public security organs, and the right of social participation in the sun. Now the author makes some shallow suggestions:

1, improve the transparency of probation application. When deciding on a case of probation, the judge should comprehensively demonstrate the circumstances of the crime, the harm of the crime, the social impact and the subjective aspects, combine the opinions of the public security organ, the public prosecution organ and the victim, list the reasons for applying probation under the legal norms, and put an end to black-box operation.

2. Adopt effective supervision and restriction mechanism. Court leaders at all levels should attach importance to the trial of probation cases, formulate supervision measures for probation cases, and strengthen management and supervision through various forms. It is necessary to strengthen supervision and guidance on the trial of cases.

Strengthen macro management and effectively control the total amount and quality of probation cases. We should not only accept the supervision of the procuratorate, but also take the initiative to accept the supervision of the National People's Congress and its Standing Committee, give full play to the functions of the trial supervision court of our hospital, regularly review probation cases, and correct problems in time when found.

3. Increase the probation hearing system. After the trial, if the collegial panel thinks that the defendant can apply probation, it shall hold a trial on probation. Introduce a suspended hearing system, so that the victims, prosecutors, investigators, defendant units, schools, community managers, villagers' neighborhood committees and other participants related to the case can fully express their opinions and suggestions. Because they are closely related to the defendant's daily life, they have a better understanding of the defendant's usual performance and even the basic situation of the crime, and their opinions on whether the defendant can apply probation are more objective. Taking their opinions and suggestions as reference for probation application can improve the objectivity and basis of probation application. Participants in the probation hearing come from different places in the defendant's jurisdiction, and they are representatives of different opinions. They can express their opinions truthfully according to their own wishes on the premise of being responsible for the law, which may make the face-to-face speech reasonable, greatly ensure the fairness and justice of the procedure, and then ensure the fairness and justice of the entity, and make the judgment made by the judge more objective and fair, and better reflect the public opinion. Thirdly, respecting citizens' right to know is beneficial to the investigation of probation offenders. On the one hand, through the probation hearing, the citizens in the jurisdiction where the defendant is located know the reasons why the defendant applies probation or not, which greatly respects the citizens' right to know; On the other hand, it is beneficial to stimulate the enthusiasm of the defendant's unit or grass-roots organization and make him consciously participate in the investigation of probation offenders, thus changing the embarrassing situation of poor probation investigation in the past, which is beneficial to improve the probation system. Probation hearing procedures should be carried out from the following aspects:

(1) participants. Including members of the collegial panel, the public prosecutor of this case, police officers of police stations under the jurisdiction of public security organs, victims and their families, defendants and their families, representatives of the defendant's unit, the defendant's unit, schools, sub-district offices, villagers' committees and other relevant personnel. Except for the public prosecutor, none of the above-mentioned personnel are legal participants. Whether they are willing to accept the invitation of the court to participate in the trial is not legally guaranteed. Whether to participate in the hearing should be decided by themselves, because it is not their legal obligation to provide evidence on whether the defendant applies probation. In my opinion, the hearing personnel do not need to attend in a fixed way, but the key personnel of the case can be present according to the needs of the case, such as the victim of the injury case, the management personnel of the defendant's unit and residence, etc. Public prosecutors may solicit their opinions when they appear in court, and if investigators and other relevant personnel are unable to be present, they may give written feedback. The way of listening can be mastered flexibly. But the hearing personnel must be "related" to the defendant.

(2) Listening content. It should be verified around the defendant's criminal circumstances, repentance performance, personal situation, family situation, community transformation environment, whether he can effectively fulfill his obligations during the probation period, and whether he can implement the supervision responsibility of the criminal during the probation period.

(3) the procedure of hearing. First of all, the judge supports the application of probation; Secondly, the parties concerned shall express their opinions of approval or opposition, and may provide relevant evidential materials. When necessary, the judge can take the initiative to investigate and make the investigation results public in court; Thirdly, the defendant made a statement, indicating his attitude of applying probation to himself and how to fulfill his obligations during probation.

(4) The hearing is over. After the hearing, the collegial panel will make a judgment on whether to apply probation according to the opinions of all parties.

(C) the improvement of probation inspection system

In order to give full play to the role of probation in saving criminals and further improve the social effect of probation application, we should improve the provisions of the existing criminal law on probation inspection system from the following aspects.

1. Establish supervision and inspection institutions. Establish a special probation supervision organization and engage in probation supervision in public security organs at or above the county level, formulate a standardized procuratorial management system, be specifically responsible for the supervision and inspection of probation criminals, and make provisions through legislation. For the investigation of specific probation, county-level investigation institutions can directly appoint inspectors to take full-time charge of the investigation, strengthen contact with relevant units and grass-roots organizations, actively mobilize social supervision forces, and conduct multi-form and multi-channel investigation, education and management of probation criminals, such as regularly learning about their performance from the neighborhood committees and village committees of their original units or places of residence, and jointly organizing legal education for probation criminals within their jurisdiction. In addition, investigation reports of probationers are submitted to the court regularly.

2. Strengthen the supervision of probation. The reason why the delivery of probation offenders is out of line is mainly due to the lack of supervision. Therefore, we should improve the existing relevant laws and regulations as soon as possible, and effectively protect the procuratorial organs' legal supervision over probation offenders. Procuratorial organs themselves should attach great importance to the supervision of probation, regularly supervise and inspect public security organs, and incorporate this into the assessment scope of prison departments as their daily work.

3. Improve the linkage mechanism between delivery and implementation. Strictly implement the provisions of Article 355 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC), and take compulsory measures such as residential surveillance or bail pending trial before delivery to ensure effective supervision of probation before delivery. At the same time, an execution rebate system is established, and the execution documents served by the court are accompanied by execution rebates. This rebate is not to prove whether the execution document has been delivered, but to let the execution organ reply to the court in the form of rebate in time. After receiving this rebate, the court shall consider that the execution has been completed and complete the execution delivery procedure. In addition, a standard notice of assistance in implementation should be formulated. If a probation worker has a work unit, it should be sent to the probation worker's work unit for assistance in execution. If there is no work unit, it should be sent to the probation worker's residents' committee or villagers' committee for assistance in execution, so as to strengthen the investigation and help education of probation workers in a wider scope.

4. Publicize at the place where the probationer is located. Publicize the crimes, judgments and penitence of probation offenders in the defendant's work unit and residence, explain the supervision and management regulations that probation offenders should abide by, and mobilize local people to assist in supervision and education of probation offenders. In addition, report boxes and telephone numbers are set up in the work units and residences of probation workers to keep abreast of the opinions of the masses.

5. Establish a patrol linkage mechanism. For a suspended criminal who is approved to go out, the executing organ shall promptly notify him to go to the public security organ to continue the investigation, so as to ensure the continuity of probation investigation. In addition, the household registration network is adopted, that is, the basic information of probation prisoners is registered on the population information network of the public security system, which is shared nationwide and supervised by the network.

Four. Concluding remarks

Through the analysis of the application status and existing problems of the probation system in China, it is found that the application of probation in judicial practice is blind, and the reasons why some judicial personnel apply probation to criminals are puzzling, which is far from the requirements of the rule of law. On the other hand, the indifference of some judicial personnel to the application of probation is worrying. Therefore, this paper mainly talks about probation application and probation investigation, and puts forward some suggestions to improve China's probation system, such as refining probation application conditions, standardizing probation application procedures, setting up special supervision and investigation institutions, establishing and perfecting probation investigation system, fully embodying the functions of probation system, making the public, procuratorial organs and laws perform their respective duties, making the society harmonious and stable, and giving full play to the real effect of probation.

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