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 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.
Commutation refers to a criminal law enforcement activity that appropriately reduces the original sentence. Commutation in a narrow sense refers to the criminal judicial activities of the people's court to reduce the original sentence of a criminal sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment according to law, when there are legal circumstances for commutation, which are proposed by the organ responsible for executing the penalty; Commutation in a broad sense refers to the criminal judicial activities of the people's court to reduce the original sentence in accordance with the law at the request of the organ responsible for executing the penalty when there are statutory mitigating circumstances, including not only commutation in a narrow sense, but also a two-year suspension of execution of the death penalty after commutation of the main penalty, fines, probation and additional deprivation of political rights.
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.
Free punishment
Regarding the scope of application of commutation, as far as China's criminal law is concerned, commutation is mainly aimed at the commutation of a few free sentences, and has not yet involved the commutation of rights punishment, property punishment and life punishment.
Generally speaking, supplementary punishment should not be mitigated. Based on criminal law, it is mainly a law that stipulates crime and punishment.
However, some changes in the types of punishment have little influence on criminals' execution of punishment to some extent, or on solving the problem of criminals' criminal responsibility. Although both fines and confiscation of property have the nature of criminal punishment, they are far less severe than the penalty of freedom punishment.
Commutation cases of criminals sentenced to life imprisonment shall be under the jurisdiction of the Higher People's Court in the place where they served their sentences. Commutation cases of criminals sentenced to fixed-term imprisonment, criminal detention or public surveillance shall be under the jurisdiction of the intermediate people's court in the place where the sentence is served.
The commutation of a prisoner sentenced to life imprisonment shall be recommended by the executing organ and approved by the prison administration organs of provinces, autonomous regions and municipalities directly under the Central Government; For the commutation of a criminal sentenced to fixed-term imprisonment (including commutation to fixed-term imprisonment), criminal detention or public surveillance, the executing organ shall put forward suggestions for commutation; If a criminal who has been declared suspended has made great meritorious service during the probation period, and it is necessary to reduce his sentence and shorten the probation period accordingly, the community correction institution shall put forward written opinions and the intermediate people's court shall make a ruling according to law; The commutation of a criminal under the supervision of a detention center of a public security organ shall be proposed by the detention center where the criminal is located and ruled by the intermediate people's court according to law.
When accepting a case of commutation, the people's court shall examine whether the materials transferred by the executing organ include the following contents: (1) commutation proposal; (2) A copy of the judgment, ruling and previous ruling of the Court of Final Appeal on commutation; (3) Written evidence of specific facts that the prisoner repents or makes meritorious service or has made significant meritorious service; (4) criminal appraisal form, reward and punishment approval form, etc. Upon examination, if the above materials are complete, it shall be accepted; If the materials are incomplete, it shall notify the executing organ that submitted the commutation to make corrections.
When trying cases of commutation, the people's court shall form a collegial panel according to law. The people's court shall complete the trial and make a ruling within 1 month from the date of receiving the commutation proposal; Cases of commutation of life imprisonment or fixed-term imprisonment (including commutation to fixed-term imprisonment) may be extended by 1 month due to complex circumstances or special circumstances.
The ruling on commutation shall be delivered to the executing organ, the people's procuratorate at the same level and the criminal himself in time. If the people's procuratorate considers that the people's court's ruling on commutation is improper, it shall submit a written correction opinion to the people's court within 20 days after receiving a copy of the ruling. After receiving the written rectification opinions, the people's court shall re-form a collegial panel for trial and make a final ruling within 1 month.