Legal analysis
Probation, the full name of probation, is a legal punishment and reform system, which means that the offender who violates the criminal law and is confirmed by legal procedures to have constituted a crime and should be punished by punishment will be convicted first and the sentenced punishment will not be executed temporarily. Probation means that a specific investigation institution decides whether to apply a specific penalty according to the criminal's performance during a certain trial period. Probation is applicable to fixed-term imprisonment of less than three years (fixed-term imprisonment decided to be executed by combining punishment for several crimes, and if one of them is sentenced to probation, the principle of absorption should be increased, so that probation will no longer be executed), and probation is not applicable to medium-and long-term fixed-term imprisonment, life imprisonment, death penalty, recidivism and ringleaders of criminal groups. The application of probation is to consider the repentance of criminals under the premise that they have been sentenced to punishment, so as to determine whether it will really not harm society and decide whether to execute the punishment. How to accurately grasp the application, the key lies in how to determine that the sentenced criminal "does not really endanger society again." In the trial practice, it is entirely up to the people's court to decide whether to apply probation. Because there is no unified consideration standard for "not endangering society again", some people consider the plot of the defendant's crime, the performance of repentance after the crime, the attitude of the victim and so on. When determining the performance of repentance, more consideration should be given to whether the defendant has statutory mitigating circumstances (such as surrender, meritorious service, accessory, minor), whether to return stolen goods or compensate the victim for losses, whether to pay fines, etc. Some even consider some illegal and objective factors related to the defendant, such as factors that the defendant is not suitable for imprisonment (such as illness) and family factors (such as supporting the elderly and raising children), etc., as factors for applying probation.
legal ground
Article 72 of the Criminal Law of People's Republic of China (PRC) A criminal sentenced to criminal detention or fixed-term imprisonment of not more than three years may be suspended if he meets the following conditions at the same time, and suspended for people under the age of 18, pregnant women and people who have reached the age of 75: (1) The circumstances of the crime are relatively minor; (2) showing repentance; (3) There is no danger of committing a crime again; (four) the announcement of probation has no significant adverse effects on the community where he lives. Probation can be announced according to the circumstances of the crime, and criminals are prohibited from engaging in specific activities, entering specific areas, places and contacting specific personnel during the probation period of probation. If a suspended criminal is sentenced to an additional punishment, the additional punishment shall still be executed.
Article 25 of the Measures for the Implementation of Community Corrections If a community correctional officer who has been declared suspended or paroled has any of the following circumstances, the judicial administrative organ at the same level in his place of residence shall submit a proposal to the original referee people's court to revoke the suspended sentence or parole with relevant supporting materials, and the people's court shall make a ruling according to law within one month from the date of receipt: (1) Violating the prohibition order of the people's court, and the circumstances are serious; (two) during the period of community correction, it fails to report at the prescribed time or is out of supervision for more than one month; (three) due to violation of the provisions of supervision and management by the public security administration punishment, still not correct; (4) Failing to make corrections after being warned three times by the judicial administrative organ; (five) other violations of relevant laws, administrative regulations and supervision and management regulations, and the circumstances are serious.