1, the meaning and basic content of the criminal policy of combining leniency with severity
The basic meaning of the criminal policy of combining leniency with severity is: according to different situations of crimes, treat them differently, combine leniency with severity, and combine leniency with severity; "Forgiveness" is not an extra-legal grace, and "strictness" is not infinitely aggravated. Instead, we should punish crimes in strict accordance with the criminal law, the criminal procedure law and related criminal laws and according to the specific circumstances of the case, so as to "temper justice with mercy and punish crimes." [ 1]
Temper justice with mercy, specifically, for serious criminal crimes that seriously threaten the state power, social order and citizens' personal and property safety, mainly refer to crimes that endanger state security, crimes committed by underworld organizations, serious violent crimes and multiple crimes that seriously affect people's sense of security, we must resolutely and severely punish them according to law. Minor crimes, minor crimes, accidental crimes and joint crimes caused by civil disputes shall be given a lighter or mitigated punishment according to law. Wide is wide, strict is strict. At the same time, based on the actual needs of society, we should coordinate the balance between leniency and severity when applying laws to felony and misdemeanor. We should not be too heavy on felonies and too light on misdemeanors. We should combine leniency with severity to form a benign interaction. [2]
Carrying out the criminal policy of combining leniency with severity is not dogmatism, but is determined according to the characteristics of the case and social conditions. It neither tolerates crime blindly, nor fights crime blindly, but organically combines leniency with severity. Its essence is to treat all kinds of criminal acts differently, that is, to effectively combat crimes, but also to reduce social confrontation, turn negative factors into positive factors, realize the organic unity of legal effects and social effects, and promote socialist harmonious construction.
There is a saying in Everything is Wrong, "So, it is true to punish the thin and not the merciful, and to punish the severe and not the violent. The story is based on the world and the letter is suitable for things. " In other words, the legal punishment is very light, not because of the mercy of the judiciary; The punishment is very heavy, not because of the cruelty of justice, but according to the case and social situation. Therefore, the control of crime depends on the actual situation of society, and the measures taken should also adapt to the essential laws of things in order to achieve the expected purpose. [3]
The basic contents of the policy of combining leniency with severity include: the strictness is strict, and the leniency is lenient; There is width in strictness and strictness in width; Combine leniency with severity, and judge the situation with leniency and severity.
2. Relationship with the policy of combining leniency with severity.
There are different views on the relationship between the criminal policy of combining leniency with severity and the policy of combining leniency with severity in China's theoretical circles. One view is that the policy of combining leniency with severity embodies the spiritual concept of combining leniency with severity stipulated in criminal law, which is in the same strain and is not a new criminal justice policy; There is also a view that these two policies are not the same, and they are completely different from the background, social situation and significance. The author thinks:
(1) has a certain historical origin.
China's 1979 criminal law 1 explicitly regards the policy of combining leniency with severity as one of the legislative bases of criminal law. Since then, this policy has guided criminal legislation and justice for more than 20 years. 1997 although there is no new criminal policy statement, it puts forward a criminal policy of "combining leniency with severity" for the original criminal policy. In essence, the basic idea of the two policies is to severely crack down on and punish a series of serious crimes, but to treat some cases with minor subjective malignancy or minor circumstances leniently, and pay attention to combining leniency with severity in actual handling.
(2) It is not the same concept, but a new criminal policy that meets the requirements of the times.
Zhang, a professor at Beijing Normal University Law School, believes that combining leniency with severity is a new development of the policy of combining leniency with severity. From the logical structure and context, in the policy of combining leniency with severity, punishment comes first and leniency comes last; Punishment is the foundation, and leniency is the necessary adjustment or supplement of punishment. In the policy of combining leniency with severity, combining leniency with severity is the basis and premise, emphasizing the value orientation of human rights protection. Leniency includes most crimes that should and can be forgiven, so as to minimize or slow down the interference of crimes in social life.
The policy of combining leniency with severity is a new requirement put forward in the new era. Give priority to leniency, combine leniency with strictness, realize the organic unity of social effect and legal effect, and lay the foundation for building a harmonious socialist society. Therefore, the author thinks that the policy of combining leniency with severity is the inheritance and development of the policy of combining leniency with severity, and it is the product of keeping pace with the times in the new period.
Second, the two principles of the policy of combining leniency with severity.
1, principle of legality
The principle of a legally prescribed punishment for a crime is the boundary of the policy of combining leniency with severity. According to the provisions of the criminal law, the basic meaning of the principle of a legally prescribed punishment for a specified crime is that there is no crime without explicit provisions, and there is no punishment without explicit provisions. In carrying out the criminal policy of combining leniency with severity, combining leniency with severity is carried out on the basis of a legally prescribed punishment for a crime. Whether tempering justice with mercy is limited can only be limited by the basic principles and specific provisions established by existing laws, and the issue of tempering justice with mercy cannot be separated from legal norms. Although it is necessary to implement the principle of combining leniency with severity, this "leniency" has a scope and a "degree", that is, various substantive standards and procedural norms stipulated in the criminal law, the criminal procedure law and relevant judicial interpretations. To implement the policy of combining leniency with severity, we must be within this range. Beyond this range, it is extrajudicial mercy or extrajudicial violence, that is, illegal handling of cases.
2, the principle of crime and punishment.
The principle of suiting crime to punishment is the bottom line and standard for criminal justice to implement the criminal policy of combining leniency with severity, and it is also a concrete and higher requirement for criminal justice. The principle of adapting crime to punishment means that when sentencing criminals, they should be adapted according to their crimes and criminal responsibilities, which is a principle that shows the relationship between crime and punishment. The principle of suiting crime to punishment requires not only the objective harmfulness of criminal behavior, but also the subjective danger of criminal personality characteristics, and the combination of responsibility and prevention. [4] The policy of combining leniency with severity is based on the principle of adapting crime and punishment. According to the specific circumstances of the case and the characteristics of subjective malignancy, it is moderate and benign, that is, it is neither lenient nor lax in dealing with extrajudicial violence. Only by grasping the scale of combining leniency with severity can we abide by the principle of adapting crime to punishment and truly implement the criminal justice policy of combining leniency with severity.
Third, how to combine leniency with severity in judicial practice.
1, improve the criminal reconciliation system at the trial stage and use probation moderately. Criminal reconciliation refers to a system in which, in criminal proceedings, after the offender reaches a settlement with the victim by pleading guilty, making compensation, apologizing, etc., the state special organs do not pursue the criminal responsibility of the offender, exempt him from punishment or give him a lighter punishment [5]. This kind of reconciliation system accords with China's traditional mentality of emphasizing mediation, on the one hand, it makes the victims get economic compensation and spiritual comfort; On the other hand, it is conducive to social harmony to urge the defendant to actively repent and obey the law, reduce the opposing factors in society and reduce cross-infection.
2. Strengthen the community correction system. Community correction system refers to a kind of non-custodial penalty execution activity in which criminals who meet the conditions of community correction are placed in the community, and their criminal psychology and behavior habits are corrected by special state organs with the assistance of relevant social groups, civil organizations and social volunteers, so as to promote their smooth return to society. [6] It is not a punishment, but a socialized corrective measure. In the criminal policy of combining leniency with severity, the most important thing is the rise of community correction in China. Community correction has played an active role in embodying the criminal policy of combining leniency with severity and making up for the defects of the existing short-term free punishment.
3. Attempt of plea bargaining system. Plea bargaining refers to the negotiation and bargaining between the prosecutor and the defendant or defense lawyer before the court hearing, and the defendant pleads guilty in exchange for a lighter conviction and sentencing agreement. Once the two parties reach an agreement, the law will no longer conduct substantive trial of the case, but only formally confirm the contents of the agreement. [7] On the one hand, this system is conducive to promoting the smooth transformation of defendants, returning to society, and avoiding cross-infection in prisons and other places of detention; On the other hand, it is also beneficial for victims to obtain economic compensation and spiritual comfort; At the same time, the rapid resolution of such cases has also promoted the efficiency of the judicial organs, reduced the contradiction between fewer people and more cases in the courts, effectively reduced the backlog of cases, and is more conducive to social stability and harmony.
4. In handling juvenile cases, we should strengthen the policy of combining leniency with severity and treating them differently. For example, it is necessary to strictly implement the newly revised Provisions of the People's Procuratorate on Handling Juvenile Criminal Cases in the Supreme People's Procuratorate, and carefully examine cases that can be exempted from arrest and general prosecution. Those who meet the requirements will be educated and rescued to the maximum extent, and the humanized system stipulated in the case notification system, special handling system, family meeting system, triage system and social investigation system will be strictly observed.