The sentence cannot be commuted countless times.
According to the provisions of Article 78 of the Criminal Law, there are two types of commutation: those that can be commuted and those that should be commuted. The object conditions and limiting conditions for commutation of sentence and those for which sentence should be commuted are the same, but the substantive conditions are different. For criminals to apply for reduced sentences, they must meet the following conditions:
Object Conditions
Reduced sentences are only applicable to criminals who have been sentenced to public surveillance, criminal detention, fixed-term imprisonment, or life imprisonment. As long as a criminal is sentenced to one of the above four penalties, regardless of whether his criminal behavior is intentional or negligent, a felony or a misdemeanor, a crime endangering national security or other criminal offenses, his sentence can be commuted if he meets the statutory commutation conditions.
Reduction of sentence can only be applied to specific persons. According to Article 78 of my country's Criminal Law, commutation of sentence applies to criminals sentenced to public surveillance, criminal detention, fixed-term imprisonment, or life imprisonment. Control, criminal detention, fixed-term imprisonment and life imprisonment here all fall within the scope of free punishment. Among them, control is a sentence of restriction of freedom; criminal detention, fixed-term imprisonment and life imprisonment are sentences of deprivation of liberty. It can be seen that commutation in our country's criminal law mainly refers to shortening the execution period of freedom sentences, and is thus distinguished from other mitigation systems in the execution of sentences.
In the execution of other penalties, there are also issues of mitigation, such as death penalty commutation. As mentioned before, the death penalty is commuted because the criminal did not intentionally commit a crime during the death penalty period, so the type of punishment is changed, and the death penalty is changed to life imprisonment or fixed-term imprisonment. Although this kind of death sentence commutation also has the nature of commutation, it is one of the contents of the death sentence reprieve system and is different from the commutation system in our country's criminal law. Of course, if a person with a suspended death penalty is commuted to a life sentence or a fixed-term sentence, if the conditions for commutation are met and the sentence is commuted, it can be regarded as a commutation.
The execution of fine penalties also involves the issue of mitigation? Article 53 of my country’s Criminal Law stipulates: If it is really difficult to pay a fine due to an irresistible disaster, it may be reduced or exempted as appropriate. However, this reduction of fines is not due to the prisoner's repentance or meritorious service, but to flexible execution measures based on his actual affordability. In addition, there is also the problem of reducing the deprivation of political rights during execution. Paragraph 2 of Article 57 of my country's Criminal Law stipulates: When a suspended execution of a death sentence is commuted to a fixed-term prison sentence or a life sentence is commuted to a fixed-term prison sentence, the period of deprivation of political rights shall be attached. Changed to more than 3 years and less than 10 years. But this is only an adjustment to the additional penalty as the main penalty is reduced, rather than a reduction in the usual sense.
Substantial conditions
The substantive conditions for commutation vary depending on the type of commutation.
The essential conditions for "can" commute the sentence are that the criminal conscientiously abides by the prison rules, receives education and reform, and truly shows repentance or performs meritorious service during the execution of the sentence. Generally speaking, criminals' repentance and meritorious service while serving their sentences are consistent. However, there are also some criminals who show repentance but no meritorious service, or who show meritorious services but no outstanding repentance. The criminal law stipulates that repentance or meritorious service are conditions for commutation of sentence. As long as criminals possess one of these, their sentences can be reduced. Of course, if there are both repentance and meritorious service, a larger reduction in sentence can be granted within the statutory reduction limit.
The substantive conditions for commutation of sentence refer to the substantive conditions that the law must meet for criminals to have their sentence commuted. Only if this condition is met can the sentence be reduced. According to the provisions of our country's criminal law, commutation of sentence can only be applied to criminals who have truly repented or performed meritorious services during the execution of their punishment. This is a substantive requirement for the reduction of sentence. The reason why it is called a substantial element is determined by the purpose and purpose of commutation in our country. The purpose of commuting sentences in socialist countries is to encourage criminals to continue their reform efforts by affirming their existing reform achievements, gradually reducing or even eliminating the subjective malignancy of criminals, so that they will no longer harm society. Whether the subjective malignancy of criminals is reduced or even eliminated , an important sign is whether the criminal repented or performed meritorious services during the execution of the sentence.
Therefore, our country’s criminal law regards whether criminals have repented or performed meritorious service as the most fundamental substantive requirement for commutation of sentence. Chinese scholars also call this condition a subjective condition, pointing out that criminals must truly repent or perform meritorious services during the execution of their punishment. This is a subjective condition for commutation of sentence.
Judging from the legislative purpose of the commutation system, commutation itself aims to use the authoritative power of penalty evaluation methods to affirm the criminal's reform achievements, guide and encourage them to continue their efforts, and at the same time spur other criminals through the power of example and promote the moral development of all prisoners. *** make progress together. This formulation of subjective conditions shows that repentance is the reduction of the criminal's subjective malignancy, which has a certain basis. However, repentance and meritorious service are both objective manifestations of criminals, and calling them subjective conditions can easily lead to misunderstanding. For this reason, we tend to refer to the repentance or meritorious service required by the law as the substantive conditions for commutation.
Limited conditions
The limit of commutation refers to the minimum sentence that a criminal must actually serve after his sentence is commuted.
According to the provisions of Article 78 of the Criminal Code of our country, the limit of commutation is: the sentence actually executed after the commutation, if sentenced to public surveillance, criminal detention, or fixed-term imprisonment, shall not be less than 1/2 of the original sentence; If the sentence is life imprisonment, the term shall not be less than 13 years; if the people's court restricts the commutation of a criminal whose execution is suspended in accordance with the provisions of Article 50, Paragraph 2 of the Criminal Code, and if the sentence is commuted to life imprisonment in accordance with the law after the expiration of the suspension period, the period shall not be less than 25 years, If the suspended sentence is reduced to 25 years of fixed-term imprisonment in accordance with the law after expiration, it shall not be less than 20 years.
In February 2014, the Central Political and Legal Affairs Commission issued the "Opinions on Strictly Regulating Commutation, Parole, and Temporary Service outside Prison to Effectively Prevent Judicial Corruption", which stipulates that job-related crimes, disruption of financial management order, financial fraud crimes, and organizational crimes For organized crimes of a mafia nature, after these three types of criminals are sentenced to death and suspended prison sentences, the minimum sentence after commutation will be extended by 5 years than the original, and the minimum sentence will be no less than 22 years. [1]
The main reason why the criminal law stipulates the limits of commutation of sentences is to ensure the realization of the purpose of criminal law prevention of crime. The purpose of criminal law is the unification of general prevention and special prevention. Although at different stages of criminal proceedings, there will be different emphasis on the realization of general prevention and special prevention, the realization of one purpose cannot be ignored or even sacrificed in order to purely pursue the realization of the other purpose. The commutation system with rewards plays an important role in enabling criminals to actively accept education and reform, eliminate their subjective malignancy and personal danger as soon as possible, and thereby achieve the purpose of special prevention in criminal law.
However, if there is no limit to commutation and only a short sentence is imposed on criminals, it will inevitably reduce the deterrent effect of the criminal law and weaken the general preventive effect; and it will also be insufficient because the execution time of the criminal law is too short. Eliminate criminals' subjective bad intentions, but ultimately it is difficult to achieve the purpose of special prevention. In addition, allowing unlimited commutation is not conducive to maintaining the authority and seriousness of the court's judgment.
To understand the limits of commutation, we should scientifically define the meaning of "actually executed sentence" in Article 78 of the Chinese Criminal Code. Theoretical circles have had different views on this: some believe that the actual sentence served refers to the time the criminal served in prison for rehabilitation; some believe that the actual sentence includes not only the time served in prison, but also the time before sentencing. time in custody.
Performance of Meritorious Service
Article 78 of my country’s Criminal Law stipulates: Criminals sentenced to public surveillance, criminal detention, fixed-term imprisonment, or life imprisonment must conscientiously abide by prison regulations and receive education during the execution period. For reform, if there is genuine repentance or meritorious service, the sentence may be reduced; if there is major meritorious service, the sentence shall be reduced. "Those who have made inventions or major technological innovations" are deemed to be "significant meritorious service" and should have their sentences reduced according to the provisions of the criminal law.
The most important basis for the identification of “invention and creation” is to obtain national patent certification. Therefore, invention and creation and obtaining national patent certification are one of the grounds for the court to determine whether to commute the sentence.
At the same time, in terms of the types of inventions in prison, almost all of the patents owned by inmates are utility model patents. According to the provisions of my country's patent law, there are three types of patents for inventions and creations: invention, utility model, and design. Among them, in terms of technological content, technical requirements and review and certification procedures, invention patents are the most difficult to apply for, followed by utility model patents, which are relatively easy. The patents owned by Nan Yong, Liang Jianxing, Lou Weigang, and Chen Jianping mentioned above are all utility model patents.
The difference between utility model patents and invention patents. In terms of definition, utility model patents, also known as small inventions or small patents, refer to practical value proposed for the shape, structure or combination of products. New technology solutions are small inventions with low cost and short development cycle. An invention patent refers to an inventor using the laws of nature to propose a technical solution to a specific problem.
Utility model patents are products with a certain shape and focus on the practicality of the product. An invention patent is a technical method that focuses on creativity.
As far as the examination procedure is concerned, the country implements a preliminary examination system for utility model patents, that is, the examination committee examines the formal issues in the application documents and whether they belong to the utility model patent protection object. After passing the preliminary examination, the application can be carried out. Authorization. After the preliminary examination stage, invention patents also have a publication stage and a substantive examination stage. During the substantive examination, a comprehensive examination will be conducted on whether the patent application has novelty, creativity, practicality and other substantive conditions stipulated in the patent law.