1. What does probation mean?
Probation means suspension of execution A system of suspending the execution of punishment for criminals who have been confirmed by legal procedures to constitute a crime and should be punished because they meet legal conditions. Probation is applicable to fixed-term imprisonment of less than three years (if the combined punishment for several crimes decides to execute the fixed-term imprisonment of more than three years, the principle of absorption should be increased so that the probation will not be executed), public surveillance, deprivation of political rights and death penalty, but not to fixed-term imprisonment of more than three years or life imprisonment, recidivism and ringleaders of criminal groups.
Second, the object of probation
1. Being sentenced to criminal detention or fixed-term imprisonment of not more than three years on probation;
Second, criminals do show repentance, and the court believes that temporarily not executing the sentenced punishment will not endanger society again;
Third, criminals are not recidivists or ringleaders of criminal groups.
legal ground
According to the provisions of Articles 72 and 74 of the Criminal Law, the application of general probation must meet the following conditions:
(1) The criminal was sentenced to criminal detention or imprisonment of not more than three years. The conditional non-execution of the original sentence determines that probation can only be applied to criminals with minor crimes. The severity of the crime is commensurate with the severity of the punishment imposed on the criminal. The criminal law of our country stipulates that the object of probation is criminals sentenced to criminal detention or fixed-term imprisonment of less than three years, because these criminals have fewer crimes and less social harm. On the contrary, criminals sentenced to fixed-term imprisonment of more than three years are not listed as the object of probation because of their serious crimes and great social harm. For criminals who are sentenced to public surveillance for minor crimes, the court not only makes specific sentencing according to the nature of the crime, but also considers it necessary to apply public surveillance punishment, so the public surveillance punishment is listed as an independent punishment that does not apply the probation system. The so-called "fixed-term imprisonment of not more than three years" refers to the time limit determined by the judgment rather than the statutory punishment. Although the statutory penalty for crimes committed by criminals is fixed-term imprisonment of more than three years, it has mitigating circumstances. The sentence determined by the judgment is fixed-term imprisonment of not more than three years, and probation can also be applied.
(2) According to the criminal's criminal circumstances and penitence, it is considered that probation will not harm society. This is the fundamental condition of probation. That is to say, although some criminals have been sentenced to criminal detention or fixed-term imprisonment of not more than three years, their criminal circumstances and penitence performance do not mean that they will not be detained again or endanger society, and they cannot be suspended. However, it must be noted that since the offender has not yet applied probation, it can only be a kind of speculation or pre-judgment by the judge, and this kind of speculation or pre-judgment can only be based on the fact that the circumstances of the crime are lighter and the offender's repentance is better. Of these two factors, the lesser crime belongs to the category of committed crime, which mainly shows that the social harm of crime is less, so we should make a comprehensive judgment from both subjective malignancy and objective harm. The good performance of the offender in repentance belongs to the category before the crime, mainly because the offender is less likely to commit another crime. We should judge according to the various performances of the offender after the crime and give due consideration to the consistent performance of the offender.
(3) Criminals are not recidivists. Recidivism is persistent, subjective and vicious, and there is a danger of recidivism. It is difficult to prevent recidivism by applying probation. Therefore, even if the recidivist is sentenced to criminal detention or fixed-term imprisonment of less than three years, probation cannot be applied.
Article 74 of the Criminal Law (Amendment 8) is amended as: "Probation is not applicable to recidivists and ringleaders of criminal groups."