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Critical Evaluation of the Design of Criminal Penalty

Author: JieHaiYan
Tutor: XueJinZhan
School: East China University of Politics and Law
Course: Criminal Law
Keywords: Criminal Penalty Design Several Issues
CLC: D924.1
Type: Master's thesis
Year: 2006
Downloads: 108
Quote: 1
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Abstract


In the practice of criminal justice, it is a common situation that the court, the procuratorate and the defendant agree on the fact and character of the case, however, they have huge dispute over the application of penalty. In the defendant’s opinion, the discretion of the court is excessive. The procuratorate criticize the application of penalty by the court which is not so scientific and exact. The court complains about the unclearness and ambiguity of the application of penalty in existing criminal law, therefore, it is difficult to make the judgment. From the above mentioned attitudes, it reveals that there are many issues in the design of the penalty in the existing Chinese criminal law. This article will critical evaluate of the freedom penalty, life penalty, property penalty and the penalty of entity crime in Chinese criminal penalty system. Moreover, this article will refer to relevant foreign regulations, research and comments on the design of penalty system. In the end, this article will give suggestions on the improvement of Chinese penalty system.There are many attitudes on the future trend of Chinese criminal law, and the representational attitudes are Aggravating Theory, Alleviating Theory, and Moderate Theory. In my submission, the penalty system as“Moderate and Rational”is in accordance with the current situation of China. In case of redesign of the penalty system under this system, the application of Death Penalty shall be strictly restricted. Then the issue of changing from Death Penalty to Freedom Penalty shall be properly solved, in order to achieve the two aims of criminal penalty, namely retribution and precaution. It could be explained in detail: Probation of Death Penalty shall be recognized as an independent penalty, and then the Death Penalty shall be changed to Probation of Death Penalty. The Life Imprisonment shall be divided into the following two sorts of penalty: Life Imprisonment which could be commuted and paroled and Life Imprisonment which could not be commuted and paroled. The longest term of imprisonment shall be 25 years, in case of joinder of punishments for plural crimes, it shall not exceed 35 years.The property penalty in Chinese criminal law includes the Fine and Confiscation. Under the circumstance of alleviating the criminal penalty, the Fine is widely applied in the criminal system of countries in the world since it has great advantages. The problems of the application of Fine in the existing Chinese criminal law are as follows: the scope of application of Fine is too limited, the manner of application of Fine is over emphasized on affixation penalty, the sum of most of Fine is unlimited and etc. In my submission, the scope of application of Fine shall be widened properly, the manner of application of Fine shall include sloe penalty and affixation penalty, make the sum of Fine and the term of freedom penalty in proportion in scientific manner. As for Confiscation, the author will take into account of four aspects of problems of Confiscation in the existing Chinese criminal law and then give relevant suggestions on it.The penalty on the natural person of the existing Chinese criminal penalty system is almost reasonable, however, the entity crime is different from natural person crime. The legislation affirms the criminal liability of entity crime and legal person crime, however, it neglects the penalty part of entity crime. It is unreasonable since the only penalty could be applied to more than 120 sorts of entity crime is Fine. Therefore, it is necessary to design independent criminal penalty system for entity crime, other than existing criminal penalty system for natural person, in order to achieve the purpose and function of the entity crime penalty. Considering the foreign criminal laws have a great deal of experience on the penalty of legal person crime, this article will introduce the penalty of legal person crime in foreign countries. Moreover, this article will give suggestions on the design of penalty system for entity crime in China e.g. improvement of the application of Fine, increase of qualification penalty, increase the penalty of dissolution of entity, increase of the penalty of publishing adverse information.

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