First, the survey value:
(1) Go deep into the society, through detailed sampling survey of citizens from all walks of life, reflect citizens' views and opinions on the "National Day Amnesty" with objective data, listen to citizens' voices and pay attention to social dynamics.
(2) gather public opinion to promote the construction of the national social legal system, explore the influence of the implementation of "Amnesty" on China's criminal law, judicial authority and social harmony, and tap its value and significance.
(three) to provide some materials for legal work and academic discussion, as a basic reference. Give full play to its due role and value.
(4) Understand the humanistic quality and sense of responsibility of China citizens from some aspects, and reflect the image and mental outlook of citizens in the new era.
Second, the purpose of the investigation:
(a) to explore whether the "Amnesty" that has been dusty for more than 30 years will be re-implemented and play its unique value with a new look.
(two) to improve citizens' knowledge and understanding of "Amnesty" and their psychological endurance.
(three) to investigate the impact of the implementation of Amnesty, dig deep into the problem, implement relief, and prescribe the right medicine.
(4) Through the investigation, it will attract more attention, promote the perfection and continuous improvement of China's legal system, and accelerate the institutionalization, standardization and procedural construction of Amnesty.
(5) Thinking about how to maintain a moderate tension between humanity and the rule of law under realistic conditions is more conducive to economic development and social progress, and achieve the goal of harmonious rule of law more quickly.
Three. Time and place of investigation:
Time: March 4, 2009-March 65438+May 2009.
Location: Court, law firm, Wuhan University, Huazhong Normal University, Zhongnan University of Economics and Law (Nanhu Campus), Hubei University of Technology, Huazhong University of Science and Technology Wuchang Campus, Huazhong Normal University Hankou Campus, Wuhan University Donghu Campus, Jianghan Road Pedestrian Street, Wuchang Railway Station, Acer Bus Terminal, Paper Workshop, etc.
Four. Respondents:
Legal personnel (judicial administrators, lawyers, law teachers), college students, teachers and the masses.
Verb (abbreviation of verb) survey forms: questionnaire, interview and email.
The investigation content of intransitive verbs:
(1) Citizens' knowledge and understanding of Amnesty.
(2) Whether the amnesty conditions are mature.
(3) the object of Amnesty.
(4) The impact of amnesty.
(5) People's views on Amnesty.
(6) The attitude and psychology of the public towards prisoners who have been granted amnesty. (2 questionnaires attached)
abstract
This paper briefly combs the historical origin and evolution of China's ancient pardon system, and gives a general introduction to modern pardon and its present situation. On the basis of some analysis and research on the data of investigation and statistics, the author puts forward the view that Amnesty can be implemented on the 60th anniversary of the National Day this year, at least when conditions are ripe, but it should be cautious. This paper discusses the reasons, summarizes the social significance of Amnesty today, and puts forward the solutions after Amnesty. Based on this investigation report, we will promote the construction and improvement of a modern pardon system with pardon as the core, which meets the requirements of constitutionalism and the rule of law, and achieve the goal of harmonious rule of law.
Keywords: Amnesty; Harmonious rule of law; Amnesty system
First, the origin and evolution of the pardon system in ancient China.
In the contemporary criminal law system, pardon and prescription are two kinds of penalty elimination systems. Professor Gao Mingxuan's definition of pardon: pardon, also known as grace, usually refers to a system in which the state exempts or lightens the punishment of prisoners. In essence, the ancient pardon is no different from it, but it more accurately refers to "the system in which the king or emperor declares that criminals are exempt from prosecution or punishment."
(a) the origin of forgiveness and the provisions of the past dynasties.
Forgive me, you can also follow the crowd and save water. At present, the starting age of pardon system in China is controversial. First, it originated in Zhou Dynasty, and second, the pardon system in China began in Xia Dynasty. Judging from the maturity of institutionalization, forgiveness was inherited from Shang Dynasty and even Xia Dynasty.
In the feudal era of China, the pardon system began to improve. The Qin, Han, Tang, Song, Ming and Qing dynasties all had the provisions of the pardon system. Although the Qin Dynasty is famous for its severe punishments and harsh laws, especially Qin Shihuang, who "delights in punishment and killing" and "is resolute and resolute in everything according to law", it is unforgivable because it is recorded in the history books, but before Qin Shihuang, King Zhao Xiang, King Xiaowen and King Zhuang Xiang all gave amnesty to the world, and Hu Hai and Qin Ershi issued an amnesty order shortly after Qin Shihuang's death. During the reign of Emperor Gaozu, * * * pardoned nine times. The system of servitude and forgiveness is stereotyped. In the Eastern Jin Dynasty, the emperor also granted amnesty in the case of auspicious or auspicious events. In the Tang Dynasty, pardon was issued by the emperor. After the pardon order is issued, the prisoner can be released, and the sentenced sentence will not be executed. This idea of forgiveness continued until the Qing Dynasty. The Qing dynasty's pardon was also promulgated and implemented by the emperor. Generally speaking, the pardon in Qing dynasty was not carried out indiscriminately, and it could give full play to the role of "the essence of law enforcement" without making "those who violated the law survive".
(2) the classification of forgiveness
Analyzing the classification of ancient forgiveness is of great benefit to investigating the motives of ancient kings to implement the forgiveness system and the rationality and disadvantages of the forgiveness system itself. Generally speaking, there are the following types of forgiveness: Amnesty, Amnesty, forgiveness and forgiveness. 1, Amnesty is an order issued by the ancient king to reduce or exempt the punishment of criminals sentenced in a certain period of time because of state affairs. 2. Amnesty, also known as Deyin, means that the country was pardoned by the emperor for some reason. 3. Forgiveness refers to the emperor's pardon of a certain type of criminals in a certain area. 4. Forgiveness refers to special celebrations with secret passages, such as forgiveness after practice (the emperor ascended the throne), reform of the Yuan Dynasty, establishment of the original, establishment of the storage (the establishment of the prince), coronation of the emperor (the emperor was crowned as an adult), and meditation (the emperor offered sacrifices to Mount Tai).
Two. Overview of modern pardon system
Amnesty means that the state exempts some criminals from part or all of their punishment. It only pardons punishment, not crimes. Since the founding of the People's Republic of China, there have been seven pardons, namely:
(1)1959 On September 7, 2007 17, the Ninth Session of the Second the NPC Standing Committee decided to grant amnesty to the war criminals, counter-revolutionary criminals and ordinary criminals of Chiang Kai-shek clique and the puppet Manchukuo who had really reformed after a certain period of labor reform.
(2) 1960 1 19 10/9 The 32nd meeting of the Second the NPC Standing Committee decided to grant amnesty to the Chiang Kai-shek clique and the war criminals of the Puppet Manchukuo after a certain period of labor reform.
(3)19611216 The forty-seventh session of the Second the National People's Congress Standing Committee (NPCSC) decided to grant amnesty to the Chiang Kai-shek clique and the war criminals of the Puppet Manchukuo, who were truly rehabilitated after a period of labor reform.
(4) 1963 On March 30th, the 91st meeting of the Second the NPC Standing Committee decided to pardon the war criminals who really turned evil into good in Chiang Kai-shek clique, puppet Manchukuo and puppet Mongolian autonomous government.
(5) 1964 12 February 12, the second the National People's Congress Standing Committee (NPCSC)135th meeting decided to grant amnesty to the war criminals who truly abandoned evil and followed good, the puppet Manchukuo and the puppet Mongolian autonomous government.
(6)1On March 29th, 966, the 29th meeting of the 3rd the NPC Standing Committee decided to pardon the war criminals of the Chiang Kai-shek clique, the puppet Manchukuo and the puppet Mongolian autonomous government who really abandoned evil for good.
On March 6th, 2007, the second meeting of the 4th the NPC Standing Committee decided to pardon all prisoners of war.
There has been no amnesty in China since 1975, which led to the establishment of the amnesty system in the new constitution of 1982 and the first criminal law of new China promulgated in 1979.
In China's current laws, only the Constitution, the Criminal Law and the Criminal Procedure Law slightly involve Amnesty. China's current laws have neither substantive nor procedural provisions on the implementation of Amnesty, and the Amnesty system has been completely marginalized. The modern pardon system has the important function of regulating interest conflicts and balancing social relations. Under the specific social, political and economic situation, the proper application of the pardon system can well alleviate social contradictions and adjust conflicts of interest, thus safeguarding national stability and social stability; Harmonious society calls for modern pardon system. However, China has not actually established a perfect pardon system.
The current situation of China's pardon system is to exist without abolishing it, and to exist without using it. The absence of such legislation is an unavoidable reality in theory and practice. "Amnesty" has been shelved, and now, near the 60 th birthday of the motherland, "Amnesty" has once again been put on the important agenda. Gao Mingxuan, a famous jurist and professor of Renmin University of China, is regarded as an important founder of the new criminal law of China. He suggested that Amnesty should be implemented on the occasion of the 60th anniversary of the National Day. He pointed out that Amnesty can reflect the criminal policy of "tempering justice with mercy" and is conducive to promoting social harmony. Yang Jinzhu, member of the Central Committee of the Democratic National Construction Association and director of Hunan Tongcheng Law Firm, sent a letter to the Central Committee on the occasion of the 60th anniversary of the National Day, proposing amnesty for criminal offences, and put forward relevant suggestions and ten important points. However, Zhou Guangquan, a member of NPC Law Committee, vice president of Tsinghua University Law School and criminal law scholar, believes that this year's amnesty is not yet qualified. There are four negative effects of Amnesty: 1, which may affect China's criminal law and judicial authority; 2. Focus on pardoned criminals. At present, China does not have the conditions for them to return to society well; 3. The pardoned criminals are likely to have direct confrontation with the victims and their families; Amnesty may further aggravate the already severe social order. He believes that if the current commutation and parole system is well implemented, it can still play the role of judicial humanization. Do we need to listen to the voice of the public in this debate?
Third, empirical investigation and analysis.
(1) Analysis of survey data of students, teachers and the masses;
Table 1: Percent understanding of "Amnesty" by students, teachers and the masses;
A (release) B (commutation) C (unclear) D (other) number of people under investigation.
29.5% 57.9% 7.8% 4.8% 450 students.
34.6% 49.4% 8.6% 7.4% 100 teachers.
22.3% 61.3%1.3% 5.1%300 people.
There are 850 people, with an average of 28.8%, 56.2%, 9.2% and 5.8%.
From this data table, it can be concluded that on average, 28.8% people think that "Amnesty" is release; 56.2% people think that "Amnesty" means commutation; 9.2% said it was unclear; 5.8% people interpret it as other meanings.
The understanding of Amnesty will directly affect the public's value recognition and value orientation on whether Amnesty is implemented. In this regard, more than half of the people in this survey understand "Amnesty" as commutation, indicating that commutation is within their tolerance; They are not fully prepared for the meaning of release. People who understand "Amnesty" as release are mostly influenced by historical movies or books, such as Amnesty of Emperor Taizong. It can be seen that many people confuse modern Amnesty with ancient Amnesty. Except for a few law students and teachers who often read newspapers and care about current affairs of the country, most people mainly rely on subjective speculation and stay at the level of subjective understanding. This is enough to prove that our citizens' legal awareness and legal knowledge are still very scarce at least at this stage; Citizens' legal popularization education should be paid enough attention.
From the survey results of law students and non-law students, 44% of law students think that "Amnesty" means release; 52% people think it is commutation; 4% people have other understandings; Among non-law majors, 32% interpreted it as release, 64% as commutation and 6% as other meaning.
Table 2, Statistics on the understanding of Amnesty by law students and non-law students:
A
(release) b
(commutation) c
(unclear) d
(Other) Number of people surveyed
Law major 44% 52% 0% 4% 100 people.
Non-legal majors: 32%, 64%, 4%, 2%, 100.
Why do law students choose to be released from prison more than non-law students, and choose to commute their sentences less than non-law students? This is mainly due to the following reasons:
(1) Amnesty rarely involves law, and law students and non-law students know almost the same;
(2) There are provisions on commutation and parole in China's criminal law, and most of them should be interpreted as release after they have a certain understanding of commutation and parole, but non-law students don't know much about commutation and parole; Therefore, the choice of "commutation" is slightly higher than that of law major. This proves that the pardon system with Amnesty as the core in China is not perfect.
Table 3. Percentage of expiration of pardon conditions this year:
A
(mature) b
(immature) c
(consider) d
(unclear) the number of people under investigation
6.7% 34.4% 55.3% 3.6% 450 students.
3.6% 38.8% 55% 2.5% 100 teachers.
12.0% 36.2% 45.2% 6.6% 300 people.
Average 7.4% 36.5% 5 1.8% 4.2% total 850.
It can be concluded from the data that only 7.4% people think that the conditions for Amnesty are ripe; 36.5% people think that the conditions for Amnesty are not mature. It is worth mentioning that this data is quite close to the data that the masses think that the Amnesty conditions are not mature; 5 1.8% people think that Amnesty can be considered; 4.2% people can't reflect clearly.
A CPPCC member once said: "We are changing from a planned economy to a market economy, from a traditional society to a modern society, and we are still in a period of high crime. The current conditions are not suitable for Amnesty. " No matter whether the CPPCC member reached his conclusion subjectively or based on other factors, according to the survey statistics, at least 5 1.8% people think that the National Day Amnesty can be considered. Only 36.5% people think that the conditions are not mature. It can be roughly reflected from the data that if Amnesty is implemented this year, most people will still accept it, at least under the current conditions, it is feasible to implement Amnesty. This also reflects the civilized process of the rule of law in China and the tolerant mentality of the people.
It should not be ignored that 36.5% people think that the conditions for Amnesty are not mature at present, and only 7.4% people think that the conditions are mature. This also reflects people's cautious attitude towards Amnesty at this stage. They think it is necessary to implement Amnesty on the premise of improving the system and the rule of law.
Table 4, Percentage of Amnesty recipients:
Average evaluation of students, teachers and the masses
There are 365,438 elderly people over 75 years old+0.2%10.9% 31.2% 24.4% students.
100 teachers
There are 300 people in the crowd.
These amnesties are all international practices.
teenagers
The disabled account for 28.7%, 42.0%, 30.2% and 33.6%.
Indirect intentional criminals and negligent criminals 23.4% 30.3% 26.0% 26.6%
Female 8.7% 8.4% 4.7% 7.3%
* * * The accomplice, coerced accomplice and abettor of the same crime account for 6.0%, 6.7%, 6.3% and 6.3% respectively.
Other prisoners 2.0%1.7%1.6%1.8%.
What kind of prisoners can be considered as Amnesty targets? According to the survey, 33.6% people think that minors and disabled people can be considered as Amnesty targets, accounting for the highest proportion. Most of the reasons are that minors are not fully mature physically and psychologically, and most of them are impulsive crimes. As a vulnerable group, most of their crimes are forced by psychological or life pressure, and they do not have real criminal ability. These criminals can be treated leniently. 26.6% and 24.4% think that indirect intentional criminals, negligent criminals and elderly people over 75 can be pardoned in turn, mainly because their subjective crimes are not malicious and their harm to society is relatively low; In particular, the elderly over 75 years old basically have no criminal capacity, and the subjective criminal motives of indirect intentional and negligent criminals are relatively light, so Amnesty can be considered. However, the proportion of women, accomplices, coerced accomplices and instigators in the same crime is only 7.3% and 6.3%, which shows that whether they have the motive and ability to commit a crime remains to be tested, and their chances of recidivism are greater. In short, minors and disabled people are considered as the focus of Amnesty, and they are indeed the focus of general concern in society.
Table 5, Advantages and Disadvantages Analysis of Amnesty:
Advantages outweigh disadvantages, disadvantages outweigh advantages. Advantages and disadvantages are hard to say.
29.0%11.3% 23.6% 36.1%450 students.
Teachers are 21.3%10.0% 33.8% 35%100.
25.5% 15.5% 32.7% 28.3% 300 people.
The average is 25.3%12.3% 30.0% 31.6%, with 850 people.
In the investigation of the advantages and disadvantages of Amnesty, 3 1.6% people choose it hard to say. They believe that the advantages and disadvantages of Amnesty can only be evaluated after it is actually implemented, and it cannot be judged subjectively. There is nothing wrong with this view itself, but we can't consider its advantages and disadvantages after some major choices! Before making a choice, we should make a scientific and reasonable evaluation of its advantages and disadvantages according to various factors, and enhance foresight according to causality; Only in this way can we seek advantages and avoid disadvantages and learn from each other's strengths. In the survey, 30% people think that the pros and cons are equal, and it is hard to say that it is less than 1.6%. Amnesty is not only conducive to the harmonious and stable development of society, but also potentially harmful to society. However, as long as we operate scientifically and reasonably, this potential harm will be minimized.
Table 6, Amnesty Impact Analysis:
Whether human rights can be improved is related to the authority of judicial trial, the construction of a harmonious society and the direct victims and their families.
Can it be favorable, unfavorable, fair and unfair?
Students 24.3% 39.7% 20.0% 35.9% 42.8%13.5%16.4% 28.6%
Teachers15.2% 50.6% 6.2% 60.5% 29.6%19.8%16.0% 28.4%
Mass 24.6% 34.4%17.8% 34.6% 45.7%17.6%14.1%27.6438+0%.
The average value is 21.4% 41.6%14.7% 43.7% 39.4%17.0%15.5% 28.0%.
(Survey number: 450 students, 100 teachers, 300 people)
In all the surveys, 4 1.6% people think that Amnesty cannot improve the human rights situation in China. They believe that human rights is a wide-ranging topic, and it is impossible for amnesty to greatly improve the human rights situation in China. As a part of the law, Amnesty can only play its role. 2 1.4% people think that Amnesty can improve the human rights situation in China. Their reason is that Amnesty is a humanized decision and reflects today's society. With the maturity of the rule of law, Amnesty can enhance prisoners' confidence in life and give them equal opportunities to build a life.
Zhou Guangquan's Amnesty proposal will have an impact on China's judicial authority. Some scholars believe that China is in a critical period of perfecting legislation and strengthening law enforcement and judicature. The legal authority is gradually established, the people's legal belief is gradually enhanced, and the awareness of strictly abiding by the law is increasingly enhanced. It only needs active guidance and motivation. Regardless of the specific circumstances of the case, the "one-size-fits-all" Amnesty for criminals in a certain range is obviously a reverse incentive for more people, which damages the trust in the law and shakes the majesty of the law. 43.7% people think that Amnesty will not affect the judicial trial, and the authority of judicial trial has been deeply rooted in the hearts of the people. As a manifestation of the social criminal policy of "combining leniency with severity", Amnesty has little influence on the judicial trial of the country. Moreover, Amnesty has constitutional basis, legal provisions and procedural guarantees, and is not the product of rule by man, but the embodiment of constitutional system. Amnesty is not Amnesty, it has a specific target, and there is no "one size fits all" situation, so there is no sufficient reason to "damage legal trust and shake confidence in the rule of law".
When trying to build a harmonious society, is Amnesty conducive to the harmonious process in China? The survey results show that 39.4% of people think that Amnesty is beneficial to building a harmonious society, and 17% people choose "unfavorable". A considerable proportion of people believe that Amnesty can play an important role in building a harmonious society. Everyone has the right to pursue freedom fairly. In this civilized society, it is entirely possible to try to make those prisoners who are eager for freedom and really work hard for it return to society as soon as possible through proper channels.
Participants in the survey reported that most people hesitated when asked whether it was fair to the direct victims and their families. However, the investigation shows that punishment is not the ultimate goal. When the prisoners have sincerely repented, the victims and their families should consider giving them a chance to turn over a new leaf, and the pardoned prisoners can also give some compensation to the victims and their families.
Table 7. Statistics on whether students, teachers and the masses should pardon reformed criminals;
Can we consider whether the number of people surveyed is irrelevant?
30.4% 3.6% 65.6% 0.4% 450 students.
Teacher11.3% 6.2% 82.5% 0.0%100.
The masses are 42.0%, 8.4%, 49.2% and 0.4%, with 300 people.
27.9% 6. 1% 65.7% 0.3% on average, totaling 850.
As shown in the above table, 65.7% of the people think that it can be considered, 27.9% think that the reformed prisoners should be pardoned, 6. 1% people "shouldn't" and 0.3% people "don't care", which shows that the reformed prisoners have a certain public opinion base. Moreover, the interviewees stressed that Amnesty should be carried out on the premise that the criminals are reformed, the Amnesty conditions are clear, and the Amnesty information is transparent and open; This is an important basis for the public to accept Amnesty.
Table 8. Investigation and statistics on public tolerance and acceptance of pardoned persons;
Will you look at the pardoned prisoners in different ways, and will they be afraid?
Will it be unclear? Will it be unclear?
Students 4.2% 63.5% 28.1%4.2% 31.8% 58.9% 9.3%
Teachers 5.9% 62.9% 25.8% 5.4% 27.1%63.4% 9.5%
Mass 6.2% 60.5% 27.1%6.2% 29.3% 60.5%10.2%
5.4% 62.3% 27.0% 5.3% 29.4% 60.9% 9.7% on average.
As can be seen from the above table, as many as 62.3% people will not treat pardoned prisoners with special respect, and more than 60.9% people think they will not be afraid of pardoned prisoners. Obviously, some scholars put forward that "China is in the historical stage of social transformation and great changes, and the overall psychological endurance of the general public is obviously immature", which obviously has no sufficient factual and theoretical basis. This shows that people can still accept pardoned prisoners and society can accommodate them. The investigation on the causes of fear shows that most of the reasons why people have no fear are: 1, people are not sages, make mistakes, correct mistakes, and are kind, so they should be tolerant; 2. The pardoned prisoners are also human beings, enjoying the same human rights as other citizens and opposing any human rights discrimination; 3. Amnesty must meet certain conditions and believe that the government is fair and just; 4. Amnesty prisoners have undergone good labor reform and legal education, and have basic social morality and sense of responsibility. Only by treating them equally and sincerely can their conscience be aroused; Help them regain their confidence and make due contributions to a harmonious society. These reasons also reflect that people organically combine traditional cultural connotation with modern values, better express their value pursuit, choose rationality, and also choose conscience and maturity.
(2) Investigation and analysis of judicial administrative personnel.
1, court investigation and analysis:
76. 1% people think that "Amnesty for the 60th anniversary of the National Day" is reasonable, which shows that most judicial personnel can accept "Amnesty". It has been implemented seven times before, and now it is possible and necessary to make up for the lack of legal functions. But "Amnesty" has been shrouded in dust for more than 30 years, which is not the consistent tradition of our law. Now it is proposed to implement an Amnesty. Are the conditions ripe? 50% people think that judicial personnel will remain cautious when the time is ripe. Regarding the impact of Amnesty, 47.8% people think that it will not affect the judicial authority, and only 39. 1% people think it will, which is far from Zhou Guangquan's view. Amnesty, after all, has a legal basis and must conform to certain due process. 45.7% people think that Amnesty is more beneficial than harmful to judicial work, which shows that Amnesty is feasible under the current conditions, and 34.8% people think it needs to be considered. If Amnesty can be implemented, how should it be implemented in specific operations? 45.7% people think that the legislative, judicial and administrative organs will explore and find a more suitable combination point; 30.4% people think that we should try our best to make the procedure proper, fair, just and open. Educate and follow up the prisoners who have received Amnesty, do a good job in appeasing the victims and their families, let criminals try their best to compensate the victims and their families, and do a good job in special prevention. Tolerance has been the traditional virtue of the Chinese nation since ancient times, and it is also the requirement and embodiment of the modern criminal policy of "tempering justice with mercy". 100% people agree to treat prisoners with tolerance, which is also an important embodiment of judicial humanization and modern civilization.