2065438+February 2004, the Central Political and Legal Committee stipulated that after three types of criminals, such as duty crimes, were sentenced to death with a suspended execution, the minimum sentence after commutation was not less than 22 years.
situation
According to Article 78 of the Criminal Law, commutation can be divided into commutation and non-commutation. The objects and restrictions of commutation are the same as commutation, but the substantive conditions are different. To apply commutation to criminals, the following conditions must be met:
Object condition
Commutation is only applicable to criminals sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment. Criminals sentenced to one of the above four punishments, whether their crimes are intentional or negligent, felony or misdemeanor, crime of endangering national security or other criminal crimes, can reduce their sentences as long as they have the statutory conditions for reducing their sentences.
Commutation can only be applied to specific objects. According to Article 78 of China's Criminal Law, commutation applies to criminals sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment. Public surveillance, criminal detention, fixed-term imprisonment and life imprisonment here all belong to the category of free punishment. Among them, control is the punishment of restricting freedom; Criminal detention, fixed-term imprisonment and life imprisonment are all deprivation of liberty. It can be seen that commutation in China's criminal law mainly refers to shortening the execution period of free punishment, which is different from other commutation systems in penalty execution.
In the execution of other punishments, there are also problems of mitigating punishment such as reprieve and commutation. As mentioned earlier, the commutation with a reprieve is due to the fact that criminals did not intentionally commit crimes during the reprieve period, so the types of punishment have changed, and the death penalty has been changed to life imprisonment or fixed-term imprisonment. Although this kind of commutation with a reprieve also has the nature of commutation, it is one of the contents of the reprieve system, which is different from the commutation system in China's criminal law. Of course, after the death penalty is commuted to life imprisonment or fixed-term imprisonment, it can be regarded as commutation if it meets the conditions for commutation.
Does the fine penalty also involve commutation in execution? Article 53 of China's criminal law stipulates that if it is really difficult to pay fines due to irresistible disasters, it may be mitigated or exempted as appropriate. However, the reduction of this fine is not due to the repentance or meritorious service of criminals, but to the flexible execution measures taken according to their actual affordability. In addition, deprivation of political rights also has the problem of commutation in execution. Paragraph 2 of Article 57 of China's Criminal Law stipulates that when the suspended execution of death penalty is reduced to fixed-term imprisonment or life imprisonment is reduced to fixed-term imprisonment, the additional period of deprivation of political rights should be changed to less than three years 10 year. However, this is only the adjustment of the supplementary punishment with the reduction of the principal punishment, not the commutation in the usual sense.
material conditions
The substantive conditions of commutation vary according to the type of commutation.
The essential condition for "being able to" reduce the sentence is that the prisoner earnestly abides by the prison regulations, accepts education and reform, and does repent or perform meritorious service during the execution of the penalty. Generally speaking, criminals' repentance and meritorious service in prison are unified. However, some criminals show repentance without meritorious service, or have meritorious service without outstanding repentance. According to the criminal law, repentance or meritorious service are conditions for commutation. As long as a criminal has one of them, his sentence can be reduced. Of course, if you have both repentance and meritorious service, you can give a larger commutation within the statutory commutation limit.
The essential conditions of commutation refer to the essential conditions that the law must have for criminals to commute their sentences. Only when this condition is met can the sentence be reduced. According to the provisions of China's criminal law, commutation can only be applied to criminals who do repent or make meritorious deeds during the execution of punishment. This is a basic element of the application of commutation. The reason why it is called substantive requirement is determined by the purpose and purpose of commutation in China. The purpose of applying commutation in socialist countries is to affirm the reform achievements of criminals, encourage them to continue their efforts to reform, and gradually reduce or even eliminate the subjective malignancy of criminals so that they will no longer endanger society. Whether the subjective viciousness of criminals is reduced or even eliminated depends on whether the criminals repent or perform meritorious service in the process of penalty execution.
Therefore, China's criminal law only regards whether the criminal has repented or rendered meritorious service as the most fundamental substantive element of commutation. Chinese scholars also refer to this condition as subjective condition, pointing out that criminals must truly repent or perform meritorious service during the execution of punishment, which is the subjective condition for commutation. Judging from the legislative purpose of commutation system, commutation itself aims to use the authoritative power of penalty evaluation means to affirm the reform achievements of criminals, guide and motivate them to continue their efforts, and at the same time spur other criminals through the power of example to promote the progress of all prisoners. This formulation of subjective conditions shows that repentance is the reduction of subjective malignancy of criminals, which has certain basis. However, repentance and meritorious service are both objective manifestations of criminals, which are called subjective conditions and are easy to be misunderstood. To this end, we tend to take repentance or meritorious service required by law as the substantive condition of commutation.
Limit condition
The limit of commutation refers to the minimum sentence that criminals should actually execute after commutation.
According to Article 78 of China's Criminal Law, the limit of commutation is: the actual sentence after commutation, if sentenced to public surveillance, criminal detention or fixed-term imprisonment, cannot be less than1/2 of the original sentence; Sentenced to life imprisonment for not less than 13 years; The people's court shall, in accordance with the provisions of the second paragraph of Article 50 of the Criminal Law, limit the commutation of a death sentence with a suspension of execution for not less than 25 years after the expiration of the suspension of execution and not less than 20 years after the expiration of the suspension of execution.
On February 20 14, the Central Political and Legal Committee issued the Opinions on Strictly Regulating Commutation, Parole and Temporary Execution outside Prison to Effectively Prevent Judicial Corruption, stipulating that after three types of criminals are sentenced to death with a reprieve, the minimum sentence after commutation will be extended by five years, with a minimum of not less than 22 years.
The reason why the criminal law stipulates the limit of commutation is mainly because it is necessary to ensure the realization of the crime prevention purpose of the criminal law. The purpose of criminal law is the unity of general prevention and special prevention. Although the realization of general prevention and special prevention will be emphasized in different stages of criminal proceedings, we can't ignore or even sacrifice the realization of another purpose in order to simply pursue the realization of one purpose. Commutation system plays an important role for criminals to actively accept education and reform, eliminate their subjective malignancy and personal danger as soon as possible, and then achieve the purpose of special prevention in criminal law.
However, if there is no restriction on commutation, only a short sentence will be imposed on criminals, which will inevitably reduce the deterrent power of criminal punishment and weaken the effect of general prevention; Moreover, the execution time of criminal law is too short to eliminate the subjective bad intentions of criminals, and it is difficult to achieve the purpose of special prevention in the end. In addition, allowing unlimited commutation is not conducive to maintaining the authority and seriousness of court decisions.
To understand the boundary of commutation, it is necessary to scientifically define the meaning of "actually executed sentence" in Article 78 of China's Criminal Law. In this regard, theoretical circles have always had different views: some think that the actually executed sentence refers to the time that criminals serve their sentences in prison; Some people think that the actual execution of the sentence includes not only the time served in prison, but also the detention time before judgment.
Meritorious performance
Article 78 of China's Criminal Law stipulates that a criminal sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment may have his sentence reduced if he can conscientiously abide by prison regulations and receive education and reform during the execution period, and if he truly repents or makes meritorious deeds; Those who have made significant meritorious service shall have their sentences reduced. However, "those who have made inventions or made major technological innovations" are deemed as "those who have made significant meritorious service", and their sentences should be reduced according to the provisions of the Criminal Law.
The most important basis for identifying "invention and creation" is to obtain national patent certification. Therefore, the invention and creation and obtaining the national patent certification is one of the bases for the court to decide whether to grant a reduced sentence.
At the same time, as far as the types of prison inventions are concerned, almost all prisoners' patents are utility model patents. According to the provisions of China's patent law, the types of invention patents include inventions, utility models and designs. Among them, in terms of scientific and technological content, technical requirements and examination and certification procedures, invention patents are the most difficult to apply for, followed by utility model patents, which are relatively easy. The above patents of Nan Yong, Liang Jianxing, Lou Weigang and Chen Jianping are all utility model patents.
The difference between utility model patent and invention patent, in definition, utility model patent is also called small invention or small patent, which refers to a new technical scheme with practical value for the shape, structure or combination of products, and belongs to small inventions with low cost and short development cycle. Invention patent refers to the technical scheme put forward by the inventor to solve specific problems by using the laws of nature. The utility model patent is a product with a certain shape, which pays attention to the practicality of the product. Invention patent is a technical method, which focuses on creativity.
As far as the examination procedure is concerned, the state 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 object of utility model patent protection, and can authorize them through preliminary examination. After the preliminary examination stage, there are publication stage and substantive examination stage. The substantive examination will comprehensively examine whether the patent application is novel, creative and practical and other substantive conditions stipulated in the patent law.
Parole is a system in which criminals who have been sentenced to fixed-term imprisonment or life imprisonment are conditionally released in advance after a certain period of imprisonment, because they have truly repented because they have obeyed prison regulations and received education and reform, and no longer endanger society. A paroled criminal who commits a crime again within the probation period of parole does not constitute a recidivist. Parole is an important penalty execution system in our criminal law. Proper use of parole can effectively urge criminals to obey educational reform, make them return to society as soon as possible, and help turn negative factors into positive ones.
rule
rule
Looking at the parole regulations of various countries in the world, most countries have no restrictions on the object of parole application, but some countries have restrictions on the object of parole application. For example, the Italian criminal law clearly stipulates that criminals who commit crimes of dereliction of duty, property crimes, injuries, etc. Not allowed to apply for parole; In the criminal law of Soviet Russia, the object of parole application is strictly restricted by the provision that parole is not applicable to particularly dangerous recidivists and criminals who commit serious crimes, which greatly narrows the scope of parole application. In China, 79 criminal laws have no restrictions on the nature of crimes and the types of criminals. Later, the Supreme People's Court pointed out in 199 1 10's Provisions on Several Issues Concerning the Specific Application of Laws in Handling Cases of Commutation and Parole: "The commutation and parole of counter-revolutionary criminals, ringleaders of criminal groups, recidivists and recidivists with serious crimes are mainly based on their reform performance. At the same time, on the basis of this judicial interpretation, 1997 the second paragraph of article 8 1 of the criminal law stipulates that "recidivists and criminals sentenced to long-term imprisonment or life imprisonment (except criminal detention) for violent crimes such as murder, explosion, robbery, rape and kidnapping (except intentional injury) shall not be released on parole". This is a clear restriction on the object of parole in the new criminal law.
Applicable conditions
situation
The application of parole must meet the statutory conditions. According to Article 8 1 of China's Criminal Law, the application of parole must meet the following conditions:
(A) the legal object
Not all criminals can apply for parole. According to the provisions of China's criminal law, criminals sentenced to fixed-term imprisonment, life imprisonment or criminal detention, recidivists, and criminals sentenced to fixed-term imprisonment 10 years or life imprisonment for intentional homicide, rape, robbery, kidnapping, arson, explosion, or organized violent crimes (except intentional injury) are not allowed to be released on parole.
Parole is the conditional early release of criminals, and the state does not rule out the possibility of continuing to execute the unfinished part of the punishment. This feature determines that parole does not apply to criminals sentenced to other punishments.
(two) the statutory substantive conditions
Criminals consciously abide by supervision, receive education and reform, show repentance, and are not in danger of committing crimes again. This is a necessary or key condition for applying parole. If a criminal meets the following four conditions at the same time, it should be considered as "true repentance": pleading guilty and serving the law; Abide by the code of conduct for the reform of criminals and prison discipline; Actively participate in political, cultural and technical studies; Take an active part in labor, take good care of public property and complete labor tasks.
"There is no danger of committing a crime again", 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 at the time of committing the crime, the physical condition, the personality characteristics, the source of life after parole, and the supervision conditions.
In addition, according to the relevant judicial interpretation, to grasp the substantive conditions for applying parole, we must pay special attention to the following issues:
First, in order to implement the policy of education, probation and rescue for juvenile offenders, the parole standard for juvenile offenders can be moderately relaxed according to law.
The second is the parole of criminals who have committed serious crimes endangering national security and the ringleaders, principals and recidivists of criminal groups.
(three) the legal time conditions for the execution of the penalty
Parole is only applicable to criminals who have served part of their sentences. Article 81 of the Criminal Law: "If a criminal sentenced to fixed-term imprisonment has executed more than half of the original sentence, and a criminal sentenced to life imprisonment has actually executed it for more than 13 years, he has earnestly observed prison regulations, received education and reform, and has truly repented, and is not in danger of recidivism, he can be released on parole. Under special circumstances, with the approval of the Supreme People's Court, the above-mentioned restrictions on the execution of prison terms may be waived.
"Criminal detention and recidivism, as well as criminals sentenced to long-term imprisonment or life imprisonment for intentional homicide, rape, robbery, kidnapping, arson, explosion, throwing dangerous substances or organized violent crimes, shall not be released on parole.
"When a criminal decides to be released on parole, he should consider the impact on the community where he lives after parole."
In order to make the application of parole system flexible, Article 8 1 of China's Criminal Law also stipulates that under special circumstances, with the approval of the Supreme People's Court, it may be exempted from the above-mentioned execution period. According to relevant judicial interpretations, "special circumstances" shall include the following circumstances:
(1) The prisoner has made major inventions or made outstanding contributions during his prison term;
(2) The prisoner has basically lost the ability to act, shows repentance, and will not endanger society after parole;
(3) The prisoner has special skills that are urgently needed by the relevant units;
(4) If a prisoner's family has special difficulties and needs personal care and requests parole, in judicial practice, the public security organ at or above the county level or the relevant department of the people's government shall provide proof. Except for first-time offenders, recidivists and criminals with particularly serious crimes committed by criminal groups;
(5) In order to further implement the Law on the Protection of Minors and implement the policy of education, probation and salvation for juvenile offenders, the minor who committed the crime did show repentance during the execution of the penalty and no longer endangered the society;
(6) In order to meet the needs of political struggle, parole should be applied to some criminals who have foreign nationality or do not belong to the mainland;
(7) Other special circumstances.
(4) circumstances in which parole is not applicable.
Recidivists and criminals sentenced to long-term imprisonment or life imprisonment for intentional homicide, rape, robbery, kidnapping, arson, explosion, throwing dangerous substances or organized violent crimes shall not be released on parole.
(1) For recidivists, no matter what punishment and sentence, parole is refused.
(2) Criminals who have been sentenced to long-term imprisonment or life imprisonment for committing violent crimes such as murder, explosion, robbery, rape and kidnapping shall not be released on parole. In addition to the above-mentioned crimes, "violent crimes" also include other crimes that exercise tangible power over people, such as injury, armed rebellion, armed riot, hijacking of aircraft, etc.
(3) A violent sex offender sentenced to fixed-term imprisonment of more than 10 years or life imprisonment may not be released on parole even if his sentence is less than 10 years after commutation.
In addition, the law provides strict judicial procedures for the application of parole, and parole may not be granted without legal procedures. According to Article 82 of the Criminal Law, if a prisoner is released on parole, the executing organ shall submit a proposal for parole to the people's court at or above the intermediate level, and the people's court shall form a collegial panel for trial. Those who meet the conditions for parole shall be granted parole.
Related amendments to parole in the eighth amendment of criminal law
Seventeen. Article 85 of the Criminal Law is amended as: "A paroled criminal shall, within the probation period of parole, carry out community correction according to law. If there are no circumstances stipulated in Article 86 of this Law and the probation period for parole expires, it shall be deemed that the original sentence has been executed and an announcement shall be made. "
18. the third paragraph of article 86 of the criminal law is amended as: "if a criminal who is paroled violates laws, administrative regulations or the provisions of the relevant departments of the State Council on the supervision and administration of parole within the probation period of parole and does not constitute a new crime, his parole shall be revoked in accordance with legal procedures, and he shall be put in prison to execute the unfinished sentence."
(Note) The provisions that contradict the Eighth Amendment shall be implemented in accordance with the Eighth Amendment, and the Eighth Amendment of the Criminal Law No.2011shall be implemented.
Criminal law amendment
1, criminals sentenced to fixed-term imprisonment, more than half of the original sentence, criminals sentenced to life imprisonment. According to the relevant judicial interpretation, the so-called special circumstances refer to situations with special needs in national politics, national defense and diplomacy.
2. Recidivists and criminals sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment for intentional homicide, rape, robbery, kidnapping, arson, explosion, throwing dangerous substances or organized violent crimes shall not be released on parole.
3. When a prisoner decides to be released on parole, he should consider the impact on the community where he lives after parole. (Amendment to Article 16)