(1) is suitable for different object ranges. Commutation applies to criminals sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment; Parole is only applicable to criminals sentenced to fixed-term imprisonment or life imprisonment;
(2) Different application times. Commutation is not limited by the number of times, and can be applied to a criminal once or more, and parole can only be announced once;
(3) The methods used are different. Commutation is an appropriate reduction of the original sentence. After the commutation, if the criminal has not completed the execution, he still needs to continue to execute his sentence in prison. Parole is conditional early release. After the criminal was released on parole, he was released from prison immediately and his personal freedom was restored.
(4) The legal consequences are different. There is no probation period for commutation, and even if the criminal commits a new crime after commutation, the sentence after commutation will not be executed; Parole has a certain probation period. During the period of overtime probation, if there is no legal reason to revoke parole, it shall be deemed that the original sentence has been executed. If there are legal reasons for revoking parole, parole shall be revoked and combined punishment for several crimes or fixed-term imprisonment shall be imposed according to law.
II. Relevant laws and regulations
Provisions of the Supreme People's Court Municipality on the Specific Application of Laws in Handling Cases of Commutation and Parole.
In order to ensure the fair handling of commutation and parole cases in accordance with the law, these Provisions are formulated in accordance with the Criminal Law of People's Republic of China (PRC), the Criminal Procedure Law of People's Republic of China (PRC), the Prison Law of People's Republic of China (PRC) and other legal provisions, combined with judicial practice.
Article 1 Commutation and parole are penal systems that encourage criminals to reform. The application of commutation and parole should implement the criminal policy of combining leniency with severity, give full play to the function of punishment and realize the purpose of punishment.
Article 2 When handling a case in which a criminal meets the conditions of "commutation" stipulated in the first paragraph of Article 78 of the Criminal Law, factors such as the nature and specific circumstances of the crime committed by the criminal, the degree of social harm, the performance of the original judgment and the property judgment in the effective judgment, and the consistent performance after delivery shall be comprehensively investigated.
Article 3 "True repentance" means meeting the following conditions at the same time:
(1) Plead guilty and repent;
(2) Abide by laws, regulations and regulatory provisions, and receive education and reform;
(three) actively participate in ideological, cultural and vocational and technical education;
(four) actively participate in labor, and strive to complete the task of labor.
Criminals who take advantage of their positions to commit crimes of disrupting financial management order, financial fraud and organizing (leading, participating, shielding and conniving) organized crimes of a triad nature do not actively return stolen goods, assist in recovering stolen money and compensation for losses, or obtain commutation or parole by improper means such as personal influence and social relations, etc., are not considered as "truly repentant".
The criminal's right to appeal in the process of penalty execution should be protected according to law, and his legal appeal can't be regarded as not pleading guilty and not repenting without analysis.
Article 4 Under any of the following circumstances, it can be recognized as meritorious service:
(a) to prevent others from criminal activities;
(two) to report and expose criminal activities inside and outside the prison, or to provide important clues to solve the case, which is verified by investigation;
(3) Assisting judicial organs in arresting other criminal suspects;
(4) Having made outstanding achievements in production technology innovation and scientific research;
(5) Having rendered meritorious service in resisting natural disasters or eliminating major accidents;
(6) Having made other significant contributions to the country and society.
The technological innovation or other significant contributions mentioned in items (4) and (6) shall be independently or mainly completed by criminals in the process of penalty execution, and confirmed by the provincial competent department.
Article 5 Under any of the following circumstances, it shall be deemed as "significant meritorious service":
(a) to prevent others from committing major criminal activities;
(2) reporting major criminal activities inside and outside the prison, which is verified by investigation;
(3) Assisting judicial organs in arresting other major criminal suspects;
(four) there are inventions or major technological innovations;
(5) sacrificing oneself to save others in daily production and life;
(six) outstanding performance in resisting natural disasters or eliminating major accidents;
(seven) other significant contributions to the country and society.
The invention-creation or major technological innovation mentioned in Item (4) shall be an invention patent independently or mainly completed by the criminal during the execution of the penalty and confirmed by the competent department of the state, excluding utility model patents and design patents; Other significant contributions mentioned in Item (7) shall be made by criminals independently or mainly during the execution of punishment, and confirmed by the competent state department.
Article 6 The starting time for commutation of a prisoner sentenced to fixed-term imprisonment is as follows: if he is sentenced to fixed-term imprisonment of less than five years, the commutation shall be carried out for more than one year; A person sentenced to fixed-term imprisonment of not less than five years but not more than ten years shall have his sentence reduced by one year and six months; Those sentenced to fixed-term imprisonment of more than 10 years shall have their sentences reduced after two years. The starting time of commutation of fixed-term imprisonment is calculated from the date of execution of the judgment.
Those who do repent or perform meritorious service shall be sentenced to fixed-term imprisonment of not more than nine months at a time; Those who do show repentance and perform meritorious service shall be given a one-time mitigated sentence of fixed-term imprisonment of not more than one year; Those who have made significant meritorious service shall be sentenced to fixed-term imprisonment of not more than one year and six months; Those who do show repentance and make significant meritorious service shall be commuted to fixed-term imprisonment of not more than two years at one time.
For criminals sentenced to fixed-term imprisonment of not more than ten years, the interval between two commutation shall not be less than one year; For criminals sentenced to fixed-term imprisonment of more than 10 years, the interval between two commutation shall not be less than one year and six months. The time interval of commutation shall not be less than the sentence after the last commutation.
Criminals who have made significant meritorious service may not be restricted by the above-mentioned starting time and interval of commutation.
Article 7. Criminals who meet the conditions of commutation by taking advantage of their positions, criminals who disrupt financial management order and financial fraud, criminals who organize, lead, participate in, shield or condone crimes committed by underworld organizations, criminals who endanger national security, criminals who carry out terrorist activities, ringleaders of drug-related criminal groups, drug recidivists, recidivists, and criminals who fail to perform or not fully perform effective property judgments shall be sentenced to fixed-term imprisonment of not more than 10 years. Commutation can only be carried out for more than two years, and the extent of commutation is strictly controlled with reference to Article 6 of these Provisions. A commutation shall not exceed one year's imprisonment, and the interval between two commutation shall be more than one year.
Criminals sentenced to fixed-term imprisonment of more than 10 years as mentioned in the preceding paragraph, and criminals sentenced to fixed-term imprisonment of more than 10 years for intentional homicide, rape, robbery, kidnapping, arson, explosion and organized violent crimes, and criminals sentenced to fixed-term imprisonment of more than 10 years for both crimes, can only have their sentences reduced after two years of execution, and the scope of commutation is strictly controlled with reference to Article 6 of these Provisions. A commutation shall not exceed one year's imprisonment, and there shall be an interval between two commutations.
Criminals who have made significant meritorious service may not be restricted by the above-mentioned starting time and interval of commutation.
Article 8 A criminal sentenced to life imprisonment may have his sentence reduced if he meets the conditions for commutation during the execution of the penalty, and if his sentence has been executed for more than two years. The scope of commutation is: those who repent or perform meritorious service can be reduced to 22 years in prison; Those who do show repentance and meritorious service can be reduced to fixed-term imprisonment of not less than 21 years but not more than 22 years; Those who have made significant meritorious service may be reduced to fixed-term imprisonment of not less than 20 years but not more than 21 years; Those who do show repentance and make significant meritorious service may be commuted to fixed-term imprisonment of not less than 19 years but not more than 20 years. When a life-imprisonment criminal commutes his sentence to fixed-term imprisonment, the range of commutation shall be implemented in accordance with the provisions of Article 6 of these Provisions. The interval between two commutation shall not be less than two years.
Criminals who have made significant meritorious service may not be restricted by the above-mentioned starting time and interval of commutation.
Article 9 For duty criminals sentenced to life imprisonment, criminals who disrupt the order of financial management and financial fraud, criminals who organize, lead, participate in, shield or connive at underworld organizations, criminals who endanger national security, criminals who carry out terrorist activities, ringleaders of drug criminal groups, drug recidivists, criminals who intentionally kill, rape, rob, kidnap, set fire to, explode, release dangerous substances or commit organized violent crimes. If the conditions for commutation are met, the commutation can be carried out for more than three years, and the extent of commutation shall be strictly controlled with reference to Article 8 of these Provisions. The minimum sentence after commutation shall not be less than 20 years' imprisonment. When commuting a sentence to a fixed-term imprisonment, the scope of commutation shall be strictly controlled with reference to Article 6 of these Provisions. The fixed-term imprisonment shall not exceed one year at a time and the interval between commutation shall be more than two years.
Criminals who have made significant meritorious service may not be restricted by the above-mentioned starting time and interval of commutation.
Article 10 After a criminal sentenced to death with a suspended execution is commuted to life imprisonment, if he meets the conditions for commutation, his sentence can only be commuted after the expiration of execution for more than three years. The scope of commutation is: those who repent or perform meritorious service can be reduced to 25 years in prison; Those who do show repentance and meritorious service can be reduced to fixed-term imprisonment of not less than 24 years but not more than 25 years; Those who have made significant meritorious service may be reduced to fixed-term imprisonment of not less than 23 years but not more than 24 years; Those who do show repentance and make significant meritorious service may be reduced to fixed-term imprisonment of not less than 22 years but not more than 23 years.
If a criminal sentenced to death with a suspended execution commutes his sentence to fixed-term imprisonment and then commutes his sentence, it shall be handled with reference to the provisions of Article 8 of these Provisions.
Article 11 Duty criminals sentenced to death penalty with a suspended execution, criminals who disrupt financial management order and financial fraud, criminals who organize, lead, participate in, shield or condone underworld organizations, criminals who endanger national security, criminals who carry out terrorist activities, ringleaders of drug-related criminal groups, drug recidivists, recidivists, intentional homicide, rape, robbery, kidnapping, arson, explosion, throwing dangerous substances or organizing. If the sentence is commuted to life imprisonment and meets the conditions for commutation, the sentence can only be commuted after more than three years of execution. Generally speaking, it can be reduced to 25 years in prison. Those who have rendered meritorious service or made significant meritorious service may be reduced to fixed-term imprisonment of not less than 23 years but not more than 25 years with reference to Article 10 of these Provisions. When commuting a sentence to a fixed-term imprisonment, the scope of commutation shall be strictly controlled with reference to Article 6 of these Provisions. The fixed-term imprisonment shall not exceed one year at a time and the interval between commutation shall be more than two years.
Article 12 A criminal sentenced to death with a suspension of execution, after one or more commutation, shall actually serve a term of not less than 15 years, excluding the suspended execution period.
If a criminal sentenced to death with a suspended execution refuses to obey supervision or resist reform during the suspended execution period, which does not constitute a crime, he shall be severely punished when he is commuted to life imprisonment.
Article 13 A criminal whose death sentence has been commuted to life imprisonment with a suspended execution, if he meets the conditions for commutation, can only have his sentence commuted after five years of execution. The interval of commutation and the range of commutation shall be implemented in accordance with the provisions of Article 11 of these Provisions.
Article 14 If a suspended criminal is commuted after being commuted to a fixed-term imprisonment, the commutation at one time shall not exceed six months of fixed-term imprisonment, and the interval between commutation shall not be less than two years. For those who have made significant meritorious service, the interval may be appropriately shortened, but a commutation of sentence shall not exceed one year's imprisonment.
Article 15 For criminals sentenced to life imprisonment, it should be made clear in the ruling that life imprisonment shall not be commuted or released on parole upon the expiration of the suspended execution period.
Article 16 A criminal sentenced to public surveillance or criminal detention, and a criminal whose remaining sentence is less than two years after the judgment takes effect, may have his sentence reduced as appropriate, and the starting time of commutation may be appropriately shortened, but the actually executed sentence shall not be less than half of the original sentence.
Article 17 When a criminal sentenced to fixed-term imprisonment commutes his sentence, the additional period of deprivation of political rights may be reduced as appropriate. The period of deprivation of political rights as appropriate shall not be less than one year.
If a criminal sentenced to a suspended death sentence or life imprisonment is reduced to fixed-term imprisonment, the additional period of deprivation of political rights shall be reduced to not less than seven years but not more than ten years. After one or more commutation, the final deprivation of political rights shall not be less than three years.
Eighteenth criminals sentenced to criminal detention, suspended imprisonment of not more than three years, generally do not apply to commutation.
If a criminal specified in the preceding paragraph has made significant meritorious service during the probation period of probation, his sentence may be reduced with reference to the provisions of Article 78 of the Criminal Law, and the probation period of probation shall be shortened according to law. After commutation, the probation period of criminal detention shall not be less than two months, and the probation period of fixed-term imprisonment shall not be less than one year.
Article 19 A criminal who was under the age of 18 before serving his sentence does not fall into the circumstances stipulated in the second paragraph of Article 81 of the Criminal Law. If he confesses and repents, abides by laws, regulations and prison rules, and actively participates in study and labor, he shall be regarded as having truly repented.
When reducing the sentence of the above-mentioned criminals, the range of commutation may be appropriately relaxed, or the starting time and interval of commutation may be appropriately shortened, but the relaxed range and shortened time shall not exceed one third of the corresponding range and time in these Provisions.
Twentieth elderly criminals, criminals suffering from serious diseases, criminals with physical disabilities, when reducing their sentences, should mainly examine the actual performance of their confession and repentance.
When reducing the sentence of the above-mentioned criminals who have basically lost their ability to work and can't take care of themselves, the range of commutation may be appropriately relaxed, or the starting time and interval of commutation may be appropriately shortened, but the range of relaxation and shortening time shall not exceed one third of the corresponding range and time of these Provisions.
Article 21 If a criminal sentenced to fixed-term imprisonment or life imprisonment intentionally commits a crime during the execution of the penalty, if he is sentenced to fixed-term imprisonment for a new crime, his sentence will not be reduced within three years from the date when the new crime judgment is determined; If a new crime is sentenced to life imprisonment, the sentence will not be reduced within four years from the date when the new crime judgment is determined.
If a criminal intentionally commits a crime during the period of suspension of execution of the death penalty, the period of suspension of execution of the death penalty shall be recalculated and reduced to life imprisonment, and the sentence shall not be commuted within five years.
If a criminal sentenced to death with a suspended execution intentionally commits a crime during the execution of the penalty after commutation, it shall be dealt with in accordance with the provisions of the first paragraph.
Article 22 When handling a parole case, it is determined that there is no danger of recidivism. In addition to the circumstances stipulated in Article 81 of the Criminal Law, it should also be comprehensively considered according to the specific circumstances of the crime, the original sentence, the consistent performance in the execution of the penalty, the age, physical condition, personality characteristics, source of life after parole, and supervision conditions of the prisoner.
Article 23 If a criminal sentenced to fixed-term imprisonment is released on parole, the execution time of half of the original sentence shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment.
When a criminal sentenced to life imprisonment is released on parole, the actual sentence of the punishment prescribed in the Criminal Law shall be no less than thirteen years from the date when the judgment takes effect. The time spent in custody before the judgment takes effect is not counted.
A criminal sentenced to death with a suspension of execution can only be released on parole if his sentence is commuted to life imprisonment or fixed-term imprisonment, and the actual execution is more than 15 years. The actual execution time is calculated from the date when the death penalty is suspended. The period of suspension of execution of the death penalty is not counted, and the time of detention before the judgment is determined is not deducted.
Article 24 "Special circumstances" as stipulated in the first paragraph of Article 81 of the Criminal Law refers to situations with special needs in national politics, national defense and diplomacy.
Twenty-fifth recidivists and criminals sentenced to fixed-term imprisonment of not less than ten years or life imprisonment for intentional homicide, rape, robbery, kidnapping, arson, explosion, throwing dangerous substances and organized violent crimes shall not be released on parole.
A criminal sentenced to death with a suspended execution for the crime mentioned in the preceding paragraph shall not be released on parole after being commuted to life imprisonment or fixed-term imprisonment.
Article 26 When applying parole to the following criminals, they may be lenient according to law:
(a) negligent crime, suspension of crime or coercion to participate in the crime;
(2) Criminals who have been sentenced to fixed-term imprisonment or above for excessive self-defense or excessive emergency avoidance;
(3) A criminal who was under the age of 18 at the time of committing the crime;
(4) An old criminal, a criminal suffering from a serious illness or a physically disabled criminal who has basically lost the ability to work and can't take care of himself has a definite source of livelihood after parole;
(5) Criminals who have performed particularly well during their prison term;
(6) Criminals who have other lenient parole circumstances.
Criminals who meet the statutory conditions for commutation and parole can be given priority in parole.
Article 27 If there is a property judgment in the effective judgment, the prisoner shall not be released on parole if he fails to perform it or fails to fully perform it.
Article 28 If a prisoner is released on parole after commutation, the interval shall not be less than one year; If parole is decided after a one-time deduction of fixed-term imprisonment of more than one year, the interval shall not be less than one year and six months.
If the remaining sentence after commutation is less than two years and parole is decided, the interval may be appropriately shortened.
Article 29 If a prisoner violates the laws, administrative regulations or the supervision and administration regulations of the relevant departments in the State Council during the probation period of parole, the people's court that made the decision on parole shall, after receiving the recommendation of the reporting organ or the procuratorial organ to revoke parole, examine it in time, make a decision on whether to revoke parole, send it to the reporting organ, and send a copy to the people's procuratorate, the public security organ and the original penalty execution organ.
If the criminal is at large, the revocation of the parole ruling can be used as the basis for pursuing the criminal.
Article 30 A criminal whose parole has been revoked in accordance with the provisions of Article 86 of the Criminal Law shall generally not be granted parole. However, a criminal whose parole has been revoked in accordance with the second paragraph of this article may be released on parole again if he has made a truthful confession about the crime of omission which was not confirmed by the original judgment, or if the crime of omission is due to his surrender and meets the conditions for parole.
If a prisoner whose parole has been revoked meets the conditions for commutation after being put in prison, his sentence may be reduced, but the starting time of commutation shall be counted from the date of admission.
Article 31 A criminal is over 80 years old, suffering from illness or unable to take care of himself, and there is no danger of committing a crime again. Those who meet the conditions of commutation and parole shall be given priority in parole; Those who do not meet the conditions for parole shall be treated leniently with reference to the relevant provisions of Article 20 of these Provisions.
Article 32 If the people's court decides to uphold the original judgment or ruling on a case retried in accordance with the procedure of trial supervision, the original ruling on commutation and parole shall remain valid.
If the retrial judgment changes the original judgment or ruling, the original ruling on commutation or parole will automatically become invalid, and the executing organ shall promptly report to the people's court with jurisdiction to make a new ruling on whether to commute or parole. When making a new ruling on commutation, it is not limited by the starting time, interval and range of commutation as stipulated in this regulation. When making a new ruling, all factors should be considered comprehensively, and the reduction of sentence shall not exceed the sum of the sentences deducted from the original ruling.
If the retrial is commuted to death penalty with suspension of execution or life imprisonment, when the new judgment is commuted to fixed-term imprisonment, the actually executed sentence of the original judgment shall be deducted together.
If the retrial referee is acquitted, the original ruling on commutation and parole will automatically become invalid.
Article 33 If a criminal is sentenced to a reduced sentence and several crimes are combined during the execution of the penalty for intentional crime, the sentence reduced by the commutation ruling shall not be counted as the executed sentence. The ruling that the original death sentence was commuted to life imprisonment, fixed-term imprisonment or life imprisonment was commuted to fixed-term imprisonment shall remain valid.
Article 34 After a criminal is sentenced to commutation, the original ruling on commutation will automatically become invalid if he is punished for missing several crimes during the execution of the penalty. If a criminal voluntarily confesses a crime of omission, the executing organ shall report to the people's court with jurisdiction for a new ruling on commutation and confirmation; If the crime of omission is discovered by the relevant authorities or exposed by others, the executing organ shall report it to the people's court with jurisdiction and make a new ruling as appropriate within the sentence deducted from the original ruling on commutation.
Article 35 If a criminal sentenced to death penalty with a suspended execution finds that he missed the crime during the suspended execution and decides to suspend the execution of the death penalty in accordance with the provisions of Article 70 of the Criminal Law, the suspended execution of the death penalty shall be counted from the date when the new judgment is finalized, and the suspended execution period of the executed death penalty shall be included in the suspended execution period of the new judgment, except for those sentenced to suspended execution for missing the crime.
Article 36 If a criminal sentenced to death with a suspension of execution finds an omission of a crime after the expiration of the suspension of execution, and decides to sentence him to a suspension of execution in accordance with the provisions of Article 70 of the Criminal Law, he shall actually be sentenced to life imprisonment at the time of delivery, and the death penalty shall not be suspended, except for those who are sentenced to a suspension of execution for omission of a crime.
If life imprisonment is commuted to fixed-term imprisonment, the actually executed term from the date when the suspended execution of the death penalty for the previous crime is commuted to life imprisonment to the date when the new judgment takes effect shall be counted in the term decided by the commutation ruling.
If the original commutation order is commuted, it shall be handled in accordance with Article 34 of these Provisions.
Article 37 If a criminal sentenced to life imprisonment finds that he missed the crime after commutation to fixed-term imprisonment and decides to execute life imprisonment in accordance with the provisions of Article 70 of the Criminal Law, when the life imprisonment of the new sentence is commuted to fixed-term imprisonment, the actually executed sentence from the effective date of life imprisonment of the previous crime to the effective date of the new sentence shall be deducted from the sentence decided to be executed by the commutation ruling.
If a criminal whose life imprisonment is commuted to fixed-term imprisonment, he shall be sentenced to fixed-term imprisonment of not more than three years for omission of the crime, and if he decides to be sentenced to life imprisonment for several crimes, he shall be sentenced to more than one year after the new judgment takes effect. Those who meet the conditions for commutation may be commuted to fixed-term imprisonment, and the range of commutation shall be implemented in accordance with the provisions of Articles 8 and 9 of these Provisions.
If the original commutation order is commuted, it shall be handled in accordance with Article 34 of these Provisions.
Article 38 After a criminal judgment or ruling made by a people's court becomes legally effective, if there is a property judgment in the effective judgment, the people's court shall, in accordance with the provisions of Articles 253 and 254 of the Criminal Procedure Law, transfer relevant materials reflecting the execution and performance of the property judgment to the criminal for execution. If a prisoner performs the property judgment in the effective judgment by himself or his relatives during his sentence, he shall report it to the penalty execution organ in time. When applying for commutation, the penalty execution organ shall transfer the above materials with the case.
In handling cases of commutation and parole, the people's court may verify the execution of property punishment by criminals with the people's court of first instance. The original people's court of first instance shall issue relevant certificates.
During the execution of the penalty, the people's court in charge of handling cases of commutation or parole may assist the people's court of first instance in executing the property judgment in the effective judgment.
Article 39 The term "elderly criminals" as mentioned in these Provisions refers to criminals who have reached the age of 65 when applying for commutation or parole.
The term "criminals suffering from serious diseases" as mentioned in these Provisions refers to criminals who cannot live, study or work normally after long-term treatment because of serious diseases.
The term "criminal with physical disability" as mentioned in these Provisions refers to a criminal who has basically lost the ability to live, study and work except for self-injury and disability after committing a crime due to physical defects, incomplete functions or loss of functions.
The people's court shall examine the documents provided by the penalty execution organ to prove that the criminal suffers from serious illness or physical disability, and may entrust the relevant units to make a new diagnosis and appraisal when necessary.
Article 40 The date when the judgment is executed as mentioned in these Provisions refers to the date when the criminal is actually handed over to the penalty execution organ.
The term "commutation interval" as mentioned in these Provisions refers to the period from the date of delivery of the previous commutation ruling to the date of this commutation report.
Article 41 The term "property judgment" as mentioned in these Provisions refers to the judgment that the criminal bears the incidental civil compensation obligation, as well as the judgment of recovery, ordering restitution, fine, confiscation of property, etc.
Article 42 These Provisions shall come into force as of 20071October 2065438+ 1 day. If the judicial interpretation previously issued is inconsistent with these Provisions, these Provisions shall prevail.