Secondly, Article 142 of the Criminal Procedure Law stipulates: "If the circumstances of the crime are minor and it is not necessary to sentence or exempt the punishment according to the provisions of the Criminal Law, the people's procuratorate may make a decision not to prosecute." After committing a crime, if the criminal can actively take remedial measures, plead guilty and repent, compensate the victims for their losses and reach a settlement agreement, it can be regarded as the reduction of the criminal's personal danger and social harm, and there is no need to take custody measures, or even lose the special preventive significance of investigating his criminal responsibility. Therefore, it is necessary to decide not to prosecute.
Third, in June 5438+February, 2006, Article 12 of "Several Opinions of the Supreme People's Procuratorate on Implementing the Criminal Justice Policy of Tempering Justice with Leniency" stipulated: "In minor criminal cases, if the criminal suspect pleads guilty, apologizes, actively compensates for the losses and is forgiven by the victim, or the two sides reach a settlement and earnestly perform it, and the social harm is not great, he may not be arrested or prosecuted according to law. If it is really necessary to file a public prosecution, it may put forward opinions on leniency to the people's court according to law. " The criminal reconciliation system was initially stipulated. In February, 20 1 1, "Several Opinions of the Supreme People's Procuratorate on Handling Minor Criminal Cases with Parties Reaching Reconciliation" clearly defined the guiding ideology and basic principles, scope and conditions of application, contents, ways and docking of complaints and mediation of parties' reconciliation, and standardized the application of criminal reconciliation system by procuratorial organs. First of all, it is the need to build a harmonious society. The criminal reconciliation system meets the basic requirements of a harmonious society, and its fundamental significance lies in restoring social relations destroyed by crime. For victims, the criminal reconciliation system recognizes and respects their dominant position, attaches importance to protecting their rights and interests, and restores the balance between economic interests and spiritual interests. For criminals, the criminal reconciliation system gives him the opportunity to respect and turn over a new leaf. Due to the conclusion and performance of the settlement agreement, the criminal can be lightened or exempted from criminal responsibility, and he can naturally return to society.
Secondly, it is an important embodiment of the socialist concept of rule of law. Criminal reconciliation can resolve the contradiction between the offender and the victim, promote the harmony between people, promote the offender's return to society, free the victim from the state of victimization and get corresponding compensation, and repair the interpersonal relationship and social order destroyed by criminal acts, which is an effective measure for judicial work to serve the overall situation. Carrying out the criminal reconciliation system is one of the important contents of carrying out the criminal justice policy of combining leniency with severity, and it is the concrete embodiment of guiding justice with the party's criminal policy.
Thirdly, it is conducive to reducing litigation costs and improving litigation efficiency. Improving litigation efficiency is the requirement of criminal justice. The long litigation process not only consumes a lot of manpower, material resources and financial resources, but also makes the litigants mentally overwhelmed. Even if the criminal procedure finally deals with the crime according to law, the long litigation process will overshadow the significance of the litigation result. The operation of criminal reconciliation is simple, without using a lot of manpower, special places and complicated procedures, which can save a lot of costs, solve disputes in time in the shortest time and improve the efficiency of dispute resolution in an all-round way. In judicial practice, arrest measures are generally applicable. "In criminal cases that have been convicted by the court, more than 95% of the defendants were arrested by compulsory measures." Therefore, the vast majority of criminal suspects are detained for criminal proceedings, and detention has become an inertial measure to ensure litigation. In addition, judging from the judgment of the case, "in China's criminal cases, about 75% were sentenced to fixed-term imprisonment of less than five years, and minor criminal cases sentenced to fixed-term imprisonment of less than three years accounted for about 60%." And theft, traffic accidents, minor injuries and other cases accounted for a considerable proportion. For these cases that can be completely mediated through criminal reconciliation procedures, the judicial organs have to arrest, prosecute and try in strict accordance with legal procedures, which consumes a lot of judicial resources. If these cases are reconciled at the stage of examination, arrest or prosecution, on the one hand, the victims can get spiritual comfort and economic compensation as soon as possible, and at the same time, the perpetrators can return to society as soon as possible, thus repairing the social relations destroyed by criminal acts, on the other hand, the pretrial detention rate can be reduced and the number of detainees can be reduced, which is conducive to safeguarding human rights.
The main problems existing in the application of criminal reconciliation by procuratorial organs at present
(A) insufficient legislation, unclear legal basis
The application of criminal reconciliation by procuratorial organs involves charges and penalties. According to the fourth paragraph of Article 8 of the Legislative Law, only laws can be enacted, and the applicable conditions, scope, forms, contents, procedures and results can be clearly stipulated through laws. However, the National People's Congress and its Standing Committee have not enacted the criminal reconciliation law, and the basic principles in the criminal procedure law, such as a legally prescribed punishment for a crime, the adaptation of crime and punishment, and equality before the law, have not been adjusted, resulting in the legitimacy crisis of the criminal reconciliation system since its establishment.
(2) The supporting system is not perfect, and the reconciliation effect is difficult to guarantee.
1. The docking mechanism of inspection and adjustment has not been established.
Docking between prosecution and mediation refers to the working mechanism in which the procuratorial organ and the people's mediation organization mediate in criminal reconciliation, and the victim or his relatives voluntarily reach a settlement agreement with the criminal suspect on property loss and personal injury, and the procuratorial organ supervises and recognizes it according to law. If it is indeed a case in which the criminal suspect pleads guilty and repents, actively compensates, the victim understands, and the social harm is not great, the criminal suspect can be dealt with lightly according to law. The docking of litigation and mediation expands and enriches the legal supervision power, organically connects and coordinates the legal supervision of procuratorial organs with judicial activities such as criminal reconciliation and people's mediation, and realizes the optimal allocation of judicial resources. However, at present, China has not yet established a systematic and perfect docking mechanism for prosecution and mediation, and different places have different practices in the process of implementing criminal reconciliation.
2. The investigation mechanism is not perfect.
When examining whether a case meets the conditions of criminal reconciliation, the procuratorial organ shall investigate the basic situation of the offender, including personal and family conditions, growth environment, consistent performance, criminal motives, and conditions for assistance and education. However, due to the lack of relevant supporting measures, the investigation work is mainly undertaken by the investigators of the procuratorial organs, forcing the procuratorial organs to invest a lot of manpower and material resources to conduct social investigation visits, which actually restricts the ability of the procuratorial organs to apply criminal reconciliation procedures to handle cases. At the same time, it is difficult for procuratorial organs to guarantee the objectivity of investigation and judgment because they are both investigators and decision makers.
3. The community correction system is not perfect.
According to the current law, the object of community correction only includes five categories of people who have been sentenced to punishment. People who are released on bail pending trial, under residential surveillance and without prosecution cannot be regarded as the object of community correction, and there are no measures to help and educate those who are released on bail pending trial, under residential surveillance and without prosecution. There is also a lack of assistance and education mechanisms for minors. Some areas began to explore the practice of entrusting communities to help with teaching; In some areas, schools are entrusted to help educate students about the perpetrators; In some areas, special aid and education institutions have been established to help and educate young people. These explorations have positive significance and ensured the social effect of criminal reconciliation to a certain extent, but these assistance and education mechanisms only play a role in a limited scope and need to be further explored and improved.
4. Non-custodial coercive measures are difficult to apply.
In China's criminal procedure law, the premise of obtaining a guarantor pending trial is that the criminal suspect can provide a guarantor or deposit, but for outsiders, either the guarantor cannot be provided or the guarantor provided is also an outsider. As for the deposit, if the amount is large, the suspect can't pay it at all, and if the amount is small, it will not play a guarantee role. The premise of residential surveillance is that the criminal suspect has a fixed residence or the investigation organ can designate a residence for the criminal suspect. However, many criminal suspects and defendants have no fixed residence, and if they are required to be designated by the public security organs, they are suspected of being detained in disguise. This leads the judiciary to regard detention as "the promotion of punishment, or as an important means of investigation, and some regard it as a tool to combat crime and maintain social stability."
5. Lack of conditional non-prosecution system.
Conditional non-prosecution means that the procuratorial organ sets certain conditions for the juvenile defendant according to his age, personality, circumstances, nature and circumstances of the crime, causes of the crime and repentance after the crime. During the inspection period, those who actively perform relevant social obligations are enough to prove that they do show repentance, and the procuratorial organs will make a decision not to prosecute according to law. If they fail to perform, they will be investigated for criminal responsibility. This system is clearly stipulated in the procedural laws of Germany and Japan, which have a very important impact on the punishment of some criminal acts. There is no clear stipulation about "conditional non-prosecution" in China, but it is only piloted in some areas.
(three) the judicial standards are not uniform, and the disposal results are uneven.
1, the scope of application is not uniform.
Regarding the scope of application of criminal reconciliation, some provisions apply to minor cases such as minor injuries, negligent crimes and juvenile crimes. , can be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance, and a single fine, and some provisions are applicable to criminal cases caused by neighborhood disputes and family disputes. Although they are basically applicable to minor criminal cases, and from the specific types of cases, they mainly focus on minor injuries and traffic accidents, but they are not unified within this boundary.
2. The applicable objects are not uniform.
The applicable objects of criminal reconciliation should include juvenile offenders, students among adult offenders, first offenders, occasional offenders and negligent offenders. It is a common practice in all countries to apply criminal reconciliation to minors, and it is gradually extended to negligent offenders, first-time offenders and occasional offenders among adult criminal suspects. Adult criminal suspects, as negligent offenders, first-time offenders and even offenders, have shallow subjective malignancy and are not difficult to educate and reform. From the point of view of injury recovery, they should be determined as the applicable objects of criminal reconciliation. However, in the practice of criminal reconciliation in various places, some of the above subjects are included in the object of criminal reconciliation, and some choose some of them, and there is no unified standard.
3. The reconciliation method is not uniform.
There are three main modes for procuratorial organs to apply criminal reconciliation: one is the mode of self-reconciliation between the victim and the offender, that is, the dispute settlement mode in which the offender reaches a written economic compensation agreement through self-negotiation with the victim on the premise of pleading guilty and repenting, and the victim will not pursue the criminal responsibility of the offender; Second, the procuratorial organ presides over the settlement mode, which means that the case-handling personnel communicate with the injurer and the victim to persuade the two sides to reach an agreement on matters such as economic compensation standards and apology, thus prompting the victim to give up the dispute settlement method of investigating criminal responsibility; The third is the mediation mode of the people's mediation committee, that is, the procuratorial organ entrusts the grass-roots people's mediation committee to mediate minor injury cases in which the offender and the victim have a willingness to reconcile. In cases where an agreement is reached through mediation, the offender may no longer be investigated for criminal responsibility.
4. The reconciliation procedure is not uniform.
There are two main starting procedures for criminal reconciliation: one is the active starting mode, that is, if the case-handling personnel think that it is in line with criminal reconciliation, they should first fill in the Approval Form for Starting Criminal Reconciliation Procedure, and after being reviewed by the department head and reported to the competent leader for approval, they will serve the relevant personnel with a notice on the application of criminal reconciliation procedure to determine the specific time, place, content and participants of reconciliation; The second is the passive start-up mode, that is, after the criminal and the victim voluntarily reach a civil settlement agreement, they apply in writing to the procuratorate for reducing or exempting the criminal punishment or asking not to pursue his criminal responsibility, and the procuratorate will make corresponding lenient treatment according to law.
5. The compensation standard is not uniform.
The practice of criminal reconciliation in various places shows that in the case of compensation, both parties have the right to negotiate on the specific amount of compensation, even in the same area, there is no unified compensation scale. There are many factors that affect the amount of compensation, such as the nature of the case, the severity of the consequences of criminal acts, and the economic situation of both parties, which will affect the determination of the specific amount. In practice, there are a large number of cases in which the injured party "exchanges money for punishment" and the injured party "overcharges".
6, the disposal results are not uniform
Judging from the practice in various places, procuratorial organs generally adopt the following ways to deal with reconciliation cases: first, they do not deal with crimes, dismiss cases or even directly file criminal cases, or never prosecute; Second, it is exempt from criminal responsibility and relatively exempt from prosecution and judgment of criminal punishment; Third, lenient punishment, probation and so on. However, different economic conditions of criminals may lead to different results of criminal reconciliation. It is often the perpetrators with superior family economic conditions who can reach an agreement through criminal reconciliation. After they have fulfilled their financial compensation responsibilities, they are easy to get the understanding of the victims, so as to get a lighter or mitigated treatment result.
The overall system construction of criminal reconciliation applied by procuratorial organs
(1) Improve legislation and clarify the legal basis.
"One of the basic functions of law is to restrain and restrict power, whether it is private power or government power." Because the current criminal reconciliation system lacks legal provisions, legislation should be made as soon as possible to establish a unified criminal reconciliation system. First of all, it is necessary to improve the criminal law and make it clear that if a victim reaches a criminal reconciliation agreement with a criminal suspect or defendant, criminal reconciliation should be regarded as a discretionary circumstance for sentencing in ordinary criminal cases and a statutory circumstance for lightening, mitigating or exempting punishment in minor criminal cases. Secondly, it is necessary to amend the Criminal Procedure Law, add criminal reconciliation to the proceedings, and make unified provisions on the applicable conditions and scope of criminal reconciliation cases and the handling methods of cases to ensure the fairness of criminal reconciliation. Thirdly, it is necessary to improve the public security management punishment law, link public security management with the non-prosecution system, and give administrative punishment to criminal suspects who decide not to prosecute and violate the public security management punishment law.
(two) improve the supporting system to ensure the relief effect.
1. Establish inspection and adjustment docking mechanism.
The key point of inspection and adjustment docking is how to carry out perfect docking. First of all, a unified and independent social mediation institution should be established, and people with legal expertise should be hired as mediators, and the funds should be uniformly allocated by the government, and an independent office should be set up to fully ensure the neutrality and impartiality of social mediation. Secondly, after accepting a case, the procuratorial organ shall promptly examine whether the case meets the conditions of criminal reconciliation. For those who meet the conditions of reconciliation but fail to reach a settlement agreement, both parties should be advised to go to a social mediation institution for criminal reconciliation. Thirdly, during the mediation of social mediation institutions, procuratorial organs should give help and support.
2. Improve the investigation mechanism.
If the procuratorial organ initially thinks that criminal reconciliation can be applied, it should investigate the basic situation of the parties, including family environment, consistent performance, causes of crime and whether they have good conditions for helping and educating. According to China's practical exploration and foreign experience, procuratorial organs can either investigate by themselves or entrust socially neutral institutions to collect relevant information, such as schools, community management institutions, residents' committees and villagers' committees. These institutions have good investigation ability and resources, and their assistance in investigation can improve efficiency and reduce the work pressure of procuratorial organs.
3. Improve the community correction system.
At the same time of carrying out community correction on a large scale in China, the lag of legislation is the biggest problem. The scope of application of the four punishments, such as public surveillance, probation, parole and deprivation of political rights, and temporary execution outside prison, is too narrow, and the applicable conditions are too principled and lack of maneuverability. The application scope of community correction should be expanded to cover those who are released on bail pending trial, under residential surveillance and who do not prosecute. According to the pilot experience of community correction in recent two years and drawing lessons from foreign successful practices, a national unified community correction law should be promulgated as soon as possible, which makes clear and detailed provisions on the institutional setup, correction content, procedures, rights and obligations of various departments, so as to provide strong legal support for community correction work.
4. Improve the supporting system for the application of non-custodial coercive measures.
"Strengthening the protection of litigation human rights and embodying the spirit and connotation of the rule of law is a clear goal of the construction of litigation rule of law in China in the new social transformation period." In order to achieve this goal, we should improve the supporting system of non-custodial compulsory measures. First of all, it is necessary to improve the dynamic monitoring system of public security, and establish a modern public security command system that integrates the technical systems of public security optical fiber communication, public security monitoring, wired and wireless communication, rapid police response, and efficient command, so that criminals can understand that escape costs more and form psychological deterrence. Secondly, it is necessary to standardize the online pursuit mechanism, establish and improve the personal characteristic information collection and management mechanism of criminal suspects, and build an information inquiry and exchange platform and information cooperation system to solve the problems faced by online pursuit. Thirdly, it is necessary to explore the establishment of an alternative detention system, so that those criminal suspects and defendants who are not suitable or necessary to be detained can be released or released on bail, and it is not necessary to reach the legal detention period every time they are arrested.
5. Establish a conditional non-prosecution system.
The basic people's procuratorates in some areas of China have tried out the conditional non-prosecution system. Although there are many problems such as lack of legal norms, narrow scope of application, and arbitrary application, it is undeniable that conditional non-prosecution has the function of diverting pre-trial procedures and effectively saving judicial resources, which can better embody the concept of individualization of punishment and promote criminals to return to society. Therefore, the conditional non-prosecution system should be established by amending the law, and it should be designed reasonably according to China's judicial practice and foreign advanced experience in order to achieve the greatest socialization effect.
6. Improve the supervision mechanism
"The more the law conforms to the purpose of preventing criminal suspects and defendants in the country, the more we should consider taking measures to treat so-called criminal suspects and defendants to prevent the country. "It is necessary to establish a special criminal reconciliation supervision institution to be responsible for the supervision of criminal reconciliation. In the process of supervision, the supervision organization should not only clarify its own authority, but also actively play its role in the negotiation between the parties involved in criminal reconciliation, strictly check whether the case belongs to the scope of criminal reconciliation, promptly stop extortion, intimidation and other illegal acts in the process of criminal reconciliation, and promptly transfer the case to the judicial organs when the criminal reconciliation is deadlocked, no agreement can be reached or even contradictions may be intensified.
(3) Procuratorial organs apply the general requirements of criminal reconciliation.
1, the function orientation of procuratorial organs in criminal reconciliation
In criminal reconciliation, procuratorial organs should grasp their own advantages and make a scientific orientation: first, procuratorial organs should provide legal services to the parties, help them solve legal problems, inform them of the conditions, procedures, rights and obligations of criminal reconciliation, and let the parties decide whether or not to agree to criminal reconciliation and the extent of criminal reconciliation. Second, the procuratorial organs should ease the emotions of the parties and provide a platform for criminal reconciliation. Because, "the task of criminal justice institutions is to calm the resentment between criminals and victims, and to confirm and develop the norms and values of social life." Procuratorial organs should reason from many aspects, such as laws, policies, and the possible impact of different handling results of cases, so as to urge the two sides to fully communicate and accept criminal reconciliation. Third, if a criminal reconciliation agreement is reached, the procuratorial organ shall review the form and content of the agreement as required and give corresponding judicial treatment.
2. Basic principles
First, the principle of equality and voluntariness. Criminal reconciliation must be based on equality and voluntariness between victims and criminals. The status of the offender and the victim in the process of reconciliation is equal, and whether to choose reconciliation and which way to choose reconciliation depends entirely on the wishes of both parties. If one party is unwilling to reconcile, the procuratorial organ shall not force, especially not put pressure on the injurer to reconcile with the victim by means of prosecution or severe punishment. The content of the settlement agreement must be reached by both parties voluntarily, and the procuratorial organ shall not force one party to accept the content of the settlement agreement.
The second is to give consideration to the interests of victims, perpetrators and society. In the process of reconciliation, we should respect the wishes of both sides and safeguard social interests. First of all, criminal reconciliation should pay attention to the protection of victims' rights and interests. The victim is the direct victim of the crime and suffers the most, so criminal reconciliation should pay attention to and pay attention to the compensation for the victim's losses, enhance the victim's position in the reconciliation process, and make him have more autonomy and the right to express his will; Secondly, criminal reconciliation should protect the legitimate rights of criminals. Criminal reconciliation should pay attention to the causes of criminals' crimes and correct their behavior. Third, we should ensure that the communities harmed by criminal acts participate in criminal reconciliation procedures, and allow community members to express their opinions on handling crimes.
The third is the principle of legality and moderation. Criminal reconciliation cannot violate the legal principles and basic spirit, and cannot contradict the existing laws and regulations. In practice, we should prevent two wrong tendencies: first, we think that criminal reconciliation is insignificant, and specific cases should be handled in whatever way is convenient; Secondly, it is considered that criminal reconciliation is a panacea, and criminal reconciliation procedures can be applied unconditionally and indefinitely to deal with criminal cases.
3. Harmony mode
"Prosecutors are not intermediary mediation agencies representing society, and participating in mediation may lead to unfair law enforcement. Because from the point of view of * * * and the prosecution of crime, the prosecutor and the victim are closely coordinated, and they will unconsciously stand on the victim's side when mediating civil compensation, which makes the voluntary mediation between the offender and the victim mandatory. At the same time, procuratorial organs should also supervise the results of criminal reconciliation agreements and incorporate them into judicial rulings. The procuratorate is both an athlete and a referee, and judicial justice is difficult to guarantee. " Therefore, in order to give consideration to the value of justice and efficiency of criminal reconciliation, a neutral third-party mediation system should be adopted, that is, for criminal cases that meet the conditions of criminal reconciliation and both parties are willing to reconcile, the procuratorial organs should let the parties reconcile themselves, instead of acting as mediators of criminal reconciliation and maintaining a neutral position.
4. Coordination process
First, the initiation procedure of criminal reconciliation. There are usually three ways for procuratorial organs to start the application of criminal reconciliation: first, the parties themselves put forward the desire to reach a settlement; Second, relatives, agents and defenders of both parties put forward reconciliation requests on their behalf; Third, if the procuratorial organ refuses to reconcile a case that meets the conditions of criminal reconciliation, it will inform the parties that reconciliation can be carried out. All three methods have applicable significance and should be affirmed.
Second, conclude a criminal reconciliation agreement. When applying criminal reconciliation, the procuratorial organ shall require both parties to reach a settlement agreement. First, the two sides can settle civil liability matters such as compensation for losses, restitution, apology and spiritual comfort. , and may request or agree with the procuratorial organ to leniently deal with whether the criminal is the victim and his legal representative or close relatives; Second, the parties or their legal representatives have the right to reach a settlement, and the close relatives of the parties, their lawyers and other clients can negotiate and solve it on their behalf. Third, if the two sides reach a settlement, a written agreement must be signed, which must be confirmed by the parties or legal representatives.
Third, the review of criminal settlement agreement. When the two sides reach a criminal settlement agreement, the procuratorial organ should focus on the following contents: First, whether the two sides are willing, the whole process from filing a settlement application to reaching a settlement agreement should be the expression of the victim and the victim's true meaning, and any form of coercion, threat or inducement of criminal settlement does not meet the requirements of the voluntary principle. Second, the procuratorial organ should review the content of the settlement agreement, not just the legality of the settlement agreement, that is, criminal reconciliation must meet the requirements of laws and regulations, judicial interpretation and criminal policy, and must not violate social morality or harm the interests of the state, the collective and others. Third, whether the victim and his legal representative or close relatives have clearly expressed their understanding of the criminal suspect and defendant.
5. Compensation standard
"In order for the rule of law to take effect, there should be a rule that is often applied without exception, which is more important than the content of this rule." The standard of economic compensation in criminal reconciliation cases should be stipulated by legislation, and the damages in the settlement agreement should generally be commensurate with the legal responsibility borne by the offender and the damage caused to the victim, and the compensation and relief ability of the offender can be considered as appropriate. In the absence of legal provisions, compensation can be made according to the compensation standard of general infringement cases in civil litigation. We can't let the victim pursue the criminal responsibility of the offender just because it is a criminal case, and the lion will speak.