On September 1st, the Provisions of Taiyuan People’s Procuratorate on the Application of Criminal Reconciliation in Handling Minor Criminal Cases (Trial) came into effect.
Set the original intention, resolve social contradictions and save judicial resources
Zhang, a middle school student in Xinghualing District, Taiyuan City, stabbed a person seriously in 2006. After accepting the case, the Xinghualing District People’s Procuratorate visited the victim and his relatives, and went to Zhang’s school to make a detailed study of his daily life. The procuratorate learned that Zhang is usually very dutiful, and although his academic performance is not very good, he has been rising steadily. Li, who was three years older than him before the incident, was bullied many times. After the parents learned about it, they took Zhang to the Li family to discuss the argument. However, Li was abusive to Zhang’s parents. Zhang was angry for a while and smashed Li into a serious injury. The two parties reached an agreement on civil compensation, and the Xinghualing District People’s Procuratorate finally made a decision not to prosecute.
This case has become a typical case encountered by Taiyuan People’s Procuratorate in the exploration of criminal reconciliation system.
"Such a child, just a moment of anger made an excessive move, subjective malignancy is very small. If he is sent to prison, his future life may be completely changed, and some teenagers will be’ infected’ again after being imprisoned, and they will completely embark on a wrong path. " Nan Li Ming Dow, Director of Public Prosecution Division I of Taiyuan Procuratorate, explained the original intention of the criminal reconciliation system.
The "Regulations" determine that in the process of minor criminal cases, the criminal suspect can actively gain the understanding of the victim by pleading guilty, apologizing, financial compensation, etc., and reach a criminal settlement agreement with the victim. After confirmation by the procuratorial organ, the procuratorial organ will make a decision not to prosecute the criminal suspect.
According to reports, in reality, if criminal sanctions are imposed on a large number of cases, under the existing judicial mechanism, both the offender and the victim are in a situation of mutual loss for a long time. For example, neighbors’ relationship, because one side’s head is broken and one side’s nose is interrupted at a moment’s quarrel, constitutes a minor injury. After the implementation of criminal sanctions, neighbors may die of old age, but it will increase social contradictions.
"Frankly speaking, prosecuting all these cases will not only have a bad social effect, but also waste judicial resources. Regardless of whether the case is big or small and involves prosecution, all procedures are actually exactly the same. The whole procedure has to be taken once. " A prosecutor said.
It is reported that from 2005 to 2006, Taiyuan City prosecuted 5,806 criminal cases with 9,223 people, among which 1,912 cases with 2,622 people were sentenced to fixed-term imprisonment of less than three years, accounting for 28% of the total number. There is considerable room for criminal reconciliation.
Experts analyze the theoretical basis of criminal reconciliation
According to Li Qi, an associate professor of Shanxi University Law School, criminal reconciliation has its profound theoretical basis.
First of all, criminal reconciliation is the requirement of implementing the criminal policy of combining leniency with severity. There are various criminal cases, and the circumstances of the crime are light and heavy, which requires different resolution mechanisms for cases of different nature, so as to make the strictness strict and the leniency lenient. For those minor cases, the application of criminal reconciliation instead of blindly emphasizing the investigation of criminal responsibility can not only eliminate the opposing feelings of both parties, protect the rights and interests of the victims, urge the perpetrators to confess their sins and mend their ways, turn negative factors into positive ones, but also save judicial resources.
Secondly, criminal reconciliation embodies the characteristics of China traditional culture. In the traditional culture of China, there is a spirit of "harmony is the most important". Reconciliation based on distinguishing right from wrong and consultation between the two sides is conducive to social stability.
Thirdly, criminal reconciliation adapts to the trend of restorative justice in the international community. The focus of restorative justice is not the pursuit of punishment for crimes, but the pursuit of order reconstruction and social harmony. Procedurally, restorative justice also pays more attention to consultation and reconciliation. From the practical point of view, restorative justice has become a rising judicial reform movement in the international scope, and has also achieved remarkable results in preventing crimes, reducing judicial investment and safeguarding the interests of victims.
Finally, criminal reconciliation is in line with the spirit of China’s current laws. China’s criminal law, criminal procedure law, etc., have some provisions on non-penalty punishment methods, mediation and reconciliation for minor cases. However, due to the lack of detailed legal provisions, the scope of application of these provisions and procedures has been greatly limited, and the positive functions have not been fully exerted. Therefore, it is very necessary to improve and refine the operating procedures.
Scope of application Five kinds of minor criminal cases
According to the "Provisions on the Application of Criminal Reconciliation in Handling Minor Criminal Cases (Trial)" promulgated by Taiyuan Municipal People’s Procuratorate, criminal reconciliation is applicable to minor criminal cases that meet one of the following circumstances: (1) The criminal suspect has a statutory lighter, mitigated or exempted punishment; (2) The criminal suspect is a negligent offender, a first-time offender or an occasional offender; (3) The criminal suspect is a minor, an elderly person or a student at school; (4) The victim is obviously at fault; (five) the case is caused by disputes between relatives and friends, neighbors, colleagues or classmates.
In practice, criminal reconciliation can easily cause people’s worries about "buying punishment with money". In this regard, the head of the criminal reconciliation research group explained that although criminal reconciliation pays attention to protecting the interests of victims, criminal suspects, the state and society also benefit from it. Through criminal reconciliation, victims can be prevented from retaliating against criminal suspects and criminal suspects can be prevented from endangering society again, which not only embodies the protection of human rights, but also plays a positive role in controlling the occurrence of social crimes. Therefore, criminal reconciliation is a judicial idea and model to prevent crime from the victim’s point of view, which embodies humanistic care and social civilization and progress, and should not be misunderstood as "buying punishment with money".
In addition, in criminal reconciliation, the "power" of procuratorial organs is remarkable. In this regard, the person in charge of the research group introduced that the procuratorial organ is a legal supervision organ. If the criminal suspect and the victim reach a settlement, they shall apply to the procuratorial organ for confirmation. The procuratorial organ is not the host of criminal reconciliation, but the supervisor of criminal reconciliation. In practice, we should try to avoid the interference of "public power" on the will of both parties.
Procuratorial organs also have corresponding supervision and restriction mechanisms in the application of criminal reconciliation. If the grass-roots procuratorial organ intends to make a decision not to prosecute by applying criminal reconciliation to minor criminal cases, it shall be discussed and decided by the procuratorial Committee and reported to the Taiyuan Municipal People’s Procuratorate for approval; After accepting the request from the grass-roots procuratorial organs, the Taiyuan Municipal People’s Procuratorate shall report it to the procurator-general for decision or the procurator-general shall submit it to the procuratorial committee for discussion and decision.
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● What are the conditions for the procuratorial organ to confirm that the parties have settled?
If the settlement agreement meets the following conditions at the same time, the procuratorial organ shall confirm that the criminal suspect and the victim have reconciled: (1) The criminal suspect pleads guilty and repents, apologizes to the victim, and makes corresponding commitments in writing; (2) The criminal suspect and the victim have reached a consensus on civil compensation matters, which have been fully fulfilled; (3) The victim expresses forgiveness for the criminal suspect.
● What happens when the procuratorate does not confirm that the parties have settled?
If the settlement agreement has one of the following circumstances, the procuratorial organ shall not confirm it: (1) it infringes on the national interests, social public interests and the legitimate interests of other citizens; (two) against the true meaning of the parties; (3) Violating the prohibitive provisions of laws and administrative regulations.
● What corresponding supporting measures does the procuratorial organ have after criminal reconciliation and non-prosecution?
Within one year after the implementation of the decision not to prosecute, the person who is not prosecuted shall regularly report to the procuratorial organ in writing his compliance with laws and regulations and his commitment. The procuratorial organ shall pay a return visit to the person who is not prosecuted and the victim. (Reporter Yuan Wei)
Editor: Wang Yuxi