Currently, the debate on criminal reconciliation is intensifying. There are those who are in favor and those who are against it. Those in favor believe that criminal reconciliation embodies the legal values ??of fairness and efficiency, and is in line with the theme of building a harmonious society and safeguarding fairness and justice; opponents believe that criminal reconciliation actually indulges crime, destroys the seriousness and unity of the law, and is an attempt to Tailor-made policies for the wealthy.
The so-called criminal settlement generally refers to the victim and the perpetrator reaching a settlement agreement on financial compensation under the auspices of a mediator, and the judicial authorities make litigation activities that are conducive to the criminal liability of the victim based on the specific circumstances of the case. . Criminal reconciliation originates from Western criminal restoration theory. In our country's criminal legal system, although there is no legal title for criminal reconciliation and a complete criminal reconciliation system built on this theoretical basis, individual legal provisions already have provisions similar to criminal reconciliation. For example, in criminal private prosecution cases, private prosecutors are allowed to exercise Waiver of the right to sue; criminal private prosecution cases allow the private prosecutor to reach a settlement with the defendant and thereby withdraw the prosecution of the defendant's criminal liability, etc. In judicial practice, some local judicial organs have even broken through the existing legal framework and formulated private prosecution cases for minor criminal suspects and minor injury suspects. On the premise of providing financial compensation to the victim and obtaining the victim's understanding, no further prosecution will be pursued. criminal responsibility.
The core value of criminal reconciliation is neither the so-called judicial fairness nor the so-called judicial efficiency, but the restoration and reconstruction of social relations. For the victim, because of the victim's voluntary compensation and sincere apology, his property losses have been compensated and relieved, and his physical and mental injuries have been comforted and healed; for the offender, because of the victim's conscious financial compensation and repentance, he has received compensation and relief. The behavior is redeemed and the social risk of re-offending is reduced. At the same time, due to criminal reconciliation, they are not held legally responsible or bear lighter criminal responsibility, which paves the way for them to return to society and establish normal social interpersonal relationships.
However, we cannot overestimate the positive role of criminal reconciliation, and must fully realize the objective negativity and limitations of criminal reconciliation. The negative effect of criminal reconciliation is that it reduces the preventive and punitive functions of criminal law, which may potentially lead to the anticipatory psychology of "exchanging money for punishment" in some people. Frictions, disputes, and minor violations may increase, bringing new instability and disharmony factors to society. Therefore, criminal reconciliation must be limited to criminal groups such as those with greater non-social risks and who have obtained the victim's forgiveness, such as those with minor injuries, minors, and others.
We believe that the criminal reconciliation theory and the establishment of the legal system must implement the criminal policy of "combining leniency with severity" consistently advocated by the party and the country. We must not only follow the trend of history, do a good job in criminal reconciliation, and build a harmonious society, but also maintain legal fairness and justice, and fully consider the traditional psychology of Chinese society for thousands of years. Therefore, the theories and legal systems of Western criminal reconciliation can be learned from, but they must not be copied in their entirety. (Lin Dongpin)
Inspiration from foreign criminal reconciliation systems
According to the strict discourse environment, the West uses the term "criminal reconciliation" with caution and often uses "criminal mediation" mediation), "criminal mediation". "(Criminal mediation) is because compared with civil settlement, the participants in criminal settlement are not disputing parties in civil disputes. They do not need to compromise and make concessions. Between them, "crime" and "non-crime" are There is no room for negotiation. The so-called criminal "reconciliation" means that the victim accepts the offender's sincere remorse and the offender accepts the offender's sincere remorse. Knowing that I have suffered unparalleled trauma, the author is worried that the misuse of the word "reconciliation" in our country's criminal justice discourse will be confused with the long-standing private exchange of interests, thus misleading public opinion.
Since its implementation in Canada in 1974, the criminal reconciliation system has attracted more and more attention from countries and regions. The United States began to implement the criminal reconciliation system in 1978 and received formal support from the National Lawyers Association in 1994. Currently, New Zealand has the highest penetration of criminal reconciliation systems globally, with the system implemented in every jurisdiction in New Zealand. Followed by Germany, the United States and the United Kingdom. Canada was the first country to advocate the criminal reconciliation system, but it failed to maintain its leading position in judicial thinking. Macau, China, has begun legislation to prepare for the full implementation of the criminal reconciliation system, while Hong Kong tried to legislate in 2003, but failed.
Foreign criminal reconciliation systems are generally specifically attached to community mediation programs designed to support restorative justice, known as the VOM program (Victim & Offender Mediation Program Victim & Offender Mediation Program Victim & Offender Mediation Program) Victim and Offender Reconciliation Program). Funding for the operations of these programs comes from community, government and religious organizations. According to a survey of nearly 300 VOM programs in the United States, 42 of VOMs are supported by community foundations, 23 rely on church funding, 17 receive grants from government probation and correctional departments, and 3 operate through victim funds. Because these projects are time-consuming and costly, it is difficult for reconciliation to achieve the desired results without strong community support and public participation.
In addition to financial considerations, another important aspect is public participation. Countries have different regulations for participants in criminal reconciliation. For example, Israel emphasizes that in addition to qualified mediators, social representatives should also be present at the dialogue between the victim and the offender. According to a survey, 82% of citizens in the United States expressed their willingness to participate in the VOM plan, and more than 91% of those participating in the VOM plan stated that their participation was purely voluntary and not affected by external pressure. In a sense, whether the criminal reconciliation system can operate sustainably and well also depends on the social awareness of society and the degree of social responsibility of citizens.
Theoretically, there should be no limit on the number of crimes included in criminal settlements, but in fact, most of the crimes accepted by the VOM project only involve property crimes and minor injury crimes. Juvenile crimes are more likely to occur in terms of age. Actively supported by the VOM project. One U.S. statistic shows that criminal settlements are almost irrelevant for felons and adults: of all VOM programs in the U.S., 45 only accept criminal settlements for minor crimes, while only 4 only accept criminal settlements for adult crimes. . Of the VOM cases accepted, 30 were related to property-related offences, 27 were assaults, 25 were violations of personal liberty and 7 were related to crimes against reputation.
Judging from foreign experience, most "voluntary choice" programs are not initiated at the request of victims or perpetrators. More than 57 cases are initiated by judicial organs or related institutions. Once the victim or the offender expresses his refusal to participate in the "voluntary choice" plan, the criminal settlement must be stopped immediately. This is the principle of voluntariness. In this sense, although the criminal reconciliation system has entered the practical stage, overall justice is still characterized by retributive justice and is improved on the basis of selective application of restorative justice.
It can be seen that the criminal reconciliation system is not achieved overnight. If it is to truly play its role, it is still subject to many constraints both inside and outside the law. (He Jingjun)
A harmonious society calls for criminal reconciliation
Criminal reconciliation means that the mediator facilitates direct dialogue between the victim and the perpetrator, and the two parties negotiate to reach a financial compensation settlement agreement. Judicial organs make litigation activities that are conducive to criminal liability based on the specific circumstances of the victim, including two procedural processes: economic compensation and reconciliation and criminal liability. In the process of reconciliation, the victim and the offender can fully explain the impact of the crime on themselves and their views on criminal responsibility, and choose a plan mutually recognized by both parties to make up for the losses caused by the crime; in the process of handling criminal liability, the offender can be given a lighter sentence. , reduce or exempt punishment.
In criminal reconciliation, what the victim can give up is his own legitimate rights and interests, and he cannot give up what he has no right to give up.
In practice, the legal principle of obtaining a lighter punishment by compensating the victim’s economic losses has emerged. Regarding criminal reconciliation, some people have many concerns and worries. For example, in our country’s current legal environment, whether the compensation is lenient and whether It means paying money to reduce the sentence; if the rich commit a crime, the rich can use money to achieve the purpose of criminal reconciliation, but the poor have to join the ranks of punishment. This will undoubtedly pose a serious challenge to the fairness of the judiciary. Is it contrary to the principle that "everyone is before the law"? "Equality" principle?
First of all, it should be recognized that there is a misunderstanding in the expression "paying money to reduce the sentence". According to the law, surrender and repentance can be used as circumstances for mitigating or mitigating punishment. Article 61 of the Criminal Law "When deciding the penalty for a criminal, the sentence shall be based on the facts of the crime, the nature and circumstances of the crime and the degree of harm to society, and in accordance with the relevant provisions of this law." The Supreme People's Court's Civil Litigation Attached to Criminal Procedures Article 4 of "Provisions on Scope Issues": "If the defendant has compensated the victim for material losses, the people's court may consider it as a sentencing circumstance." Therefore, when convicting and sentencing, whether the defendant compensates the plaintiff and obtains the plaintiff's understanding can be considered as a comprehensive factor in determining the sentencing circumstances. Especially in civil litigation incidental to criminal cases, it is a criminal act to encourage the defendant or his close relatives to take the initiative to compensate the victim, and to include the defendant's positive performance in the civil part as a mitigating factor in the sentencing part of the criminal trial. The judge exercises discretion in accordance with legal provisions when hearing a case.
Secondly, the rationality of criminal reconciliation cannot be ignored. Criminal justice reconciliation is a method of case handling that achieves restorative results through restorative means. Starting from the idea of ????focusing on human rights and emphasizing humane treatment, we should realize the correction of crimes, safeguard the legitimate rights and interests of victims, restore damaged social relations to their original state, resolve conflicts, reduce confrontation, and promote social stability and social harmony. Specifically, both parties in a criminal settlement case participate in the case-handling process, and the case-handling agency remains neutral and does not force either party to make a decision. Both parties **** make the same decision on whether to settle and how to settle. Criminal reconciliation pursues judicial justice based on the truth of the case, pays attention to the victim's wishes, gives full play to the victim's role, and avoids difficulties in the victim's family life caused by the victim's behavior. Victims take the initiative to take responsibility for their actions, so that victims can be satisfied from social, emotional, economic and other aspects, which can make up for the trauma caused by crime to society, victims and their families. At the same time, they can win the victim's forgiveness, reform and speed up their behavior as soon as possible. Double opportunity to return to society.
In short, in accordance with the provisions of the law, through the active participation of social representatives (mediators), we coordinate the restorative behaviors of the victim and the offender, embody the value concept of "personal conflict resolution", and make the realization of justice no longer necessary. It is punishment and obedience, but the positive interaction of social relations.