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Procedural Safeguards for Criminal Policy of Tempering Justice with Mercy

Author: LiSiYao
Tutor: HuZhiFang
School: Xiangtan University
Course: Procedural Law
Keywords: Criminal policy of tempering justice with mercy compulsory measures procedural safeguard
CLC: D925.2
Type: Master's thesis
Year: 2011
Downloads: 28
Quote: 0
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Abstract


Facing the severe crime situation and the limited justice resources, Strike hard policy has been unable to cope with the current development of the situation effectively, in the context of a harmonious society, the government proposed a new era of criminal policy --Tempering Justice with Mercy. Tempering justice with mercy requires different treatment of criminal offenses, on the one hand, effectively strike and deter serious crimes; on the other hand, minimize the social antagonism, deal with the minor crimes quickly, restore the social relationships, and achieve the unification of legal effects and social effects. Criminal policy of tempering justice with mercy regulating the selection and application of criminal justice in the framework of the law, guided judicial how to exercise of discretion to some extent. Responsibility inconsistent with power easy to breed corruption, and procedures framed and measured the scale of power, limiting the wanton, arbitrary and excessive discretion. The provision and operation of criminal procedure, playing the great role of impairment or gain in the implementing of criminal policy of tempering justice with mercy. In orde to make the guidance function of litigation by tempering justice with mercy, we need the criminal procedure to guarantee. Compulsory measures is restrict or deprivation of personal liberty, is closely related to basic civil rights, and also the country’s important manifestation of the level of protection of human rights. Tempering justice with mercy put forward some requirement: First of all, the purpose of compulsory measures can only be for protection, we must excluded punishment, prosecution and other multi-purpose which existed in the past; secondly, there must be a diverse system of compulsory measures, provide the action space for criminal policy of tempering justice with mercy; thirdly, there must be procedures for the implementation of the principle of proportionality, to control discretion and avoid the abuse of power; last but not least, there must be effective monitoring procedures, strict judicial review, effective supervision and canonical way of rights relief means not only supervise the handling process of criminal cases, but also the implementation of criminal policy of tempering justice with mercy. However, the existing compulsory measures are not well designed and operated to achieve these four requirements, will not be able to provide a full range of criminal procedural safeguards for implement the criminal policy of tempering justice with mercy. Based on analysis of the above, according to the requirements of tempering justice with mercy, make a proposal from four aspects, such as the diverse system of compulsory measures, the procedures for implement the principle of proportionality, monitoring procedures and moderate mechanisms for dealing with minors, for improve compulsory measures, as to promote the procedural safeguards for Criminal policy of tempering justice with mercy. Hope these measures can improve the operation of compulsory measures and some other related procedures constantly, and guide judicial officers exercise of discretion according to the requirements of tempering justice with mercy, as to implement of tempering justice with mercy, while to achieve the compulsory measures purpose of safeguarding the litigation process and human rights.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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