With the modernization and evolution of the social governance model, China needs to improve the system of incidental consequences of crimes while strengthening the social governance function by expanding the criminal legislation of misdemeanors and petty crimes. The research group conscientiously summarizes the legislative and judicial status of the incidental consequences of Chinese and foreign crimes, deeply analyzes the characteristics and shortcomings of China's criminal incidental consequences system, and puts forward legislative and judicial suggestions for improving the system of criminal incidental consequences, in order to improve the system and mechanism of criminal incidental consequences in China and promote social governance innovation.
I. The basic situation of the system of incidental consequences of crime in our country.
In China, the collateral consequences of a crime refer to the restriction, prohibition or deprivation of the rights or qualifications of a person who has committed a crime, his relatives, or a person with specific social relations due to his or her criminal or criminal punishment records. The consequences of crime in our country have played an important role in preventing criminals from committing crimes again and maintaining social stability.
1.Legislative status. With the exception of the prohibition of practice and the reporting of criminal records as provided for in articles 37-1 and 100 of the Criminal Law, the collateral consequences of other crimes are mainly provided for in laws and regulations other than the Criminal Law. According to the search results of the official website of Bei**bao with "criminal punishment" as the keyword, as of 2021, there are a total of 388 laws and regulations with incidental consequences involving the offender himself, including 52 laws, 10 administrative regulations, 52 judicial interpretations, 258 departmental rules, 15 intra-party laws and regulations, 15 group regulations, and 16 industry regulations. Except for a few normative documents formulated by the state and ** organs, most of the normative documents on the establishment of criminal collateral consequences for the relatives of the offender are formulated by the relevant local organs, and the level of effectiveness is low, but some rights of the relatives of the offender and persons with specific social relations are restricted or even deprived to a certain extent.
2.Key features: Social defense is the basic function of the consequences of crime in our country. The main purpose of creating the collateral consequences of the offence is to prevent the person who has been punished from committing another crime. The restrictions on the employment qualifications of offenders in China's laws and regulations are mainly based on the existence of significant interests in specific occupations**, which may induce the consideration of recidivism of persons who have been punished by criminal punishment. According to the international recidivism rate data, the reconviction rate of prisoners released from prison within three years is 66% in the United Kingdom, 65% in Sweden, 51% in Ireland, 48% in Germany, 48% in France, 45% in the United States, and 32% in Austria. According to statistics, the recidivism rate in our country is: 63%, 1990 86%, 1996 111%, 1286% and 14 in 20068% and 1598%, 14% in 2012, 17 in 201624% in 2017 221%。Compared with foreign countries, China's recidivism rate is significantly lower, which has an important relationship with the setting and implementation of the consequences of crime in China.
3.Key features: First, there are many types. According to Chinese law, there are eight main types of incidental consequences of crimes, namely, professional prohibitions, undertaking specific obligations such as truthful reporting, prohibiting or restricting examination qualifications, restricting settlement, restricting the acquisition of credibility or honor, excluding social security, restricting acts related to risky operations or adoptions, and refusing to issue passports for a certain period of time. According to statistics, more than 160 laws and regulations restrict the qualifications of persons who have been criminally punished for employment and practice. Among them, there are 26 kinds of restrictions on the professional qualifications of state organs, such as not being able to serve as civil servants, judges, policemen, prosecutors, etc.; 19 types of occupational restrictions involving enterprises and institutions, such as not being able to serve as bank executives, state-owned enterprise executives, ** industry executives, insurance industry executives, etc.; 30 types of professions closely related to social interests are prohibited or restricted, such as being prohibited from serving as arbitrators, auctioneers, real estate agents, etc. Some local policies also restrict residents with criminal records from settling down through points, and for citizens with specific criminal records, they are restricted from entering and exiting the country for a certain period of time.
Second, it has a wide range of applications. According to the laws of our country, the incidental consequences of a crime apply not only to the offender himself, but also to the offender's relatives and persons with specific social relations. Relatives of persons with criminal records and persons with specific social relations will also be subject to varying degrees of restrictions on employment, schooling, military enlistment and social activities. For example, the "Measures for the Recruitment of People's Police in Public Security Organs" (repealed on November 6, 2007) stipulates that those who have been sentenced to death or are currently serving a sentence among their immediate blood relatives or collateral blood relatives who have a major impact on the person must not apply for the people's police examination. Another example is the Provisions on the Political Review of Conscription (repealed on July 1, 2014), which stipulates that a principal family member, a direct dependent, a member of the main social relationship, or other relatives who have a greater influence on the person shall not be conscripted for active service if he or she has been criminally punished.
Third, it has a long existence. In our country, in many cases, there is no time limit for the consequences of the crime. As soon as the offender is convicted and sentenced, the consequences of the crime remain with him for life, thus labeling the offender as a crime. In addition to the collateral consequences of the law, offenders also have negative effects on their labeling as offenders, which exist in all areas of work, life and social activities, including tangible restrictions on activities and intangible negative social evaluations.
II. The main problems existing in the system of incidental consequences of crime in our country.
1.It does not meet the functional requirements of the current criminal law. At present, the basis of serious crimes in the criminal law set by the consequences of crimes in China has undergone fundamental changes. Compared with the 1979 Criminal Law, the number and types of crimes stipulated in the current Criminal Law have changed dramatically, and the proportion of "statutory offenses" in all crimes has increased from about 40 percent in the 1979 Criminal Law to about 85 percent of the current Criminal Law. From the perspective of judicial practice, in 2021, the number of criminals sentenced by courts nationwide to less than three years in prison accounted for 84 of the total number of effective judgments6%。It can be seen that the types of crimes and the penal function of the criminal law have undergone significant changes, that is, the main change from regulating natural offenders and actual offenders to regulating statutory offenders and dangerous offenders, and from the function of retribution and deterrence to risk prevention, behavior regulation and social governance. The consequences of offences based on the 1979 Penal Code are no longer in line with the functional requirements of the current Penal Code.
2.The setting subject and setting method are not standardized. At present, China's law does not set normative requirements for the subject and method of setting up the collateral consequences of crimes. In addition to the National People's Congress and its Standing Committee to formulate laws related to the consequences of crimes, ** institutions, young women, industry associations, etc. can set work and life restrictions on people with criminal records, and the consequences of crimes are scattered in laws, administrative regulations, local regulations, departmental rules, local rules, as well as the documents of industries, groups, and organizationsThere are many types, and it is difficult to ensure the uniformity and coordination of the accompanying consequence settings.
3.It violates the principle of proportionality of punishment and self-responsibility. At present, the incidental consequences of crimes set by Chinese law do not distinguish between felonies and misdemeanors, intentional crimes and negligent crimes, and the offenders themselves and their relatives. In most cases, the same collateral consequences are set for minor and serious crimes, intentional and negligent crimes, and the person and his relatives, resulting in misdemeanors, negligent offenders, and the offender's relatives bearing too many and too heavy collateral consequences, which violates the principles of proportionality of criminal responsibility and punishment, and self-responsibility. According to the results of the questionnaire survey of the research group, more than 80% of the people surveyed believe that the setting of the consequences of the crime should distinguish between felony and misdemeanor, intentional crime and negligent crime, and the person and his relatives.
4.It is not conducive to the reintegration of offenders into society. The incidental consequences of crimes set by Chinese law deprive or restrict the opportunity for offenders to return to society for work and life to a certain extent. At present, more than 160 laws and regulations in China impose restrictions on the qualifications of those who have been criminally punished for employment and practice, making it difficult for those who have been released from prison to find employment. For example, according to the results of a city's survey on the employment situation of persons released from prison, 37% of them had difficulties in finding employment due to criminal records, and 31% had difficulties in finding employment due to political trial problems. Restrictions on employment qualifications have narrowed the scope of re-employment for offenders, with 76 per cent of offenders employed in private enterprises and 67 per cent engaged in manual work.
III. The setting of the consequences of crimes committed by extraterritorial countries.
1.United States. In the United States, all crimes are subject to criminal consequences, and a person who is convicted of a felony, misdemeanor, or other offense is automatically subject to legal punishment, disqualification, or disadvantage. At the same time, a criminal record erasure system is established, and at the request of the applicant, the judiciary may delete or seal the criminal record ex officio, and in accordance with the amnesty order, and prohibit relevant stakeholders from inquiring about the criminal record that has been erased, etc., and the offender will return to ordinary citizenship.
2.Germany. In Germany, a person sentenced to a term of imprisonment for a felony of more than one year shall be disqualified from holding public office for a period of five years and from the right to derive rights from public elections, and the court may deprive the sentenced person of the right to stand for election or to vote in public service for a period of not less than two years and not more than five years. At the same time, if the period of disqualification or right has exceeded half of the time limit and the convicted person can be expected to cease to commit intentional crimes in the future, the court may restore the disqualification or rights of the convicted person.
3.Russia. At the end of the probationary period for a person sentenced to a suspended sentence, one year after the expiration of the sentence of a person sentenced to a lesser type of punishment than deprivation of liberty, three years after the expiration of the sentence of a person sentenced to deprivation of liberty for a minor crime or a moderately serious crime, six years after the expiration of the sentence of a person sentenced to deprivation of liberty for a serious crime, and eight years after the expiration of the sentence of a person sentenced to deprivation of liberty for a particularly serious crime.
4.Japan. Japan has established a system of extinguishment of criminal punishments, whereby where a sentence of imprisonment or higher has been completed or has been exempted, and no penalty of a fine or higher has been imposed after 10 years, the declared punishment shall become invalid; Where the enforcement of a penalty below a fine has already been completed or has been waived, and no sentence of a fine or higher has been given after five years, the announced punishment is no longer effective.
5.France. France has set up a system of reinstatement, which divides crimes into three levels: police violations, misdemeanors, and felonies, and each crime can be reinstated, but the period of investigation is different, the more serious the crime, the longer the investigation period, and the recidivism investigation period is doubled.
IV. Improve the principles that should be grasped in our nation's system of incidental consequences of crimes.
1.Serve the principles of social governance. The setting and implementation of the consequences of crime shall be to serve social governance and consolidate the foundation of the Party's governance as the value goal. According to statistics, from 2016 to 2021, courts across the country sentenced a total of 729 criminals10,000 people, involving about 20 million people. Therefore, the establishment and implementation of crimes with collateral consequences should be based on the premise of satisfying the requirements of social defense, with the recognition and praise of the masses as the primary consideration, and the goal of enhancing the people's trust and support for the Party and the state.
2.Principles of national legislation. Where the creation of incidental consequences of a crime involves the restriction or deprivation of the perpetrator's relevant rights, the national legislature shall, in accordance with legally-prescribed procedures, incorporate the mature provisions of existing regulations on the collateral consequences of the crime into basic criminal, administrative, and civil laws, so as to bring about the legalization and systematization of the collateral consequences of the crime, and local regulations may refine the methods of application, but must not create collateral consequences.
3.The principle of proportionality. The setting of the collateral consequences of crime shall follow the requirements of the principle of proportionality, with consideration of appropriateness, necessity, and balance, and on the premise of ensuring the realization of social defense functions, protecting the public interest to the greatest extent, and increasing the efficiency of social governance, the deprivation or restriction of the relevant rights of offenders and their relatives by the incidental consequences of crime shall be controlled within the minimum scope or minimum, and efforts should be made to achieve precise and scientific restrictions on the rights of offenders and their relatives.
4.The principle of proportionality of punishment and self-responsibility. Distinguish between misdemeanors and felonies, intentional crimes and negligent crimes, and set up incidental consequences of different degrees of severity respectively, so as to maximize the adaptation of culpability in the setting of incidental consequences of crimes. Distinguish between the offender himself and his relatives and persons with specific social connections, with the principle of setting collateral consequences for the offender himself, and the exception of setting collateral consequences for the offender's relatives and persons with specific social relations, so as to maximize the realization of one's own responsibility for the creation of incidental consequences of the crime.
V. Suggestions for improving the system of incidental consequences of crimes in our country.
1.Improve the system of relative non-prosecution. It is recommended that the Criminal Procedure Law be amended to expand the scope of relative non-prosecution and include cases of minor crimes and misdemeanors that admit guilt and accept punishment in the scope of application of the relative non-prosecution system. In cases of misdemeanors and petty crimes where there is no direct victim or the victim's forgiveness has already been obtained, in principle, the relative non-prosecution system is to be applied to all. At the same time, a supporting system of relative non-prosecution should be established. If a non-prosecution probationary period system is established, a probationary period for non-prosecution is set, and the relative non-prosecution system can only be applied after the probationary period expires.
2.Improve the system of systems for the consequences of crimes. The first is to adhere to national legislation. The subject of legislation that accompanies the consequences of crimes is limited to the National People's Congress and its Standing Committee, and other organs and departments must not create incidental consequences of crimes. The second is to distinguish between the severity of the crime, intentionality and negligence, and set up differentiated collateral consequences. First, the minor collateral consequences of petty crimes are set up, and petty crimes with a statutory penalty of less than short-term detention are excluded from the scope of application of the criminal record reporting system, and the public security organs do not retain records of petty crimes, and the offenders of petty crimes are not subject to any restrictions in their work and life. Second, misdemeanors are conditionally accompanied by lesser collateral consequences. For misdemeanors with a statutory penalty of less than three years imprisonment, occupational prohibitions or restrictions are only imposed on work and life matters that have a direct causal relationship with the criminal conduct. Third, felonies are moderately collateralized. The necessary causal connection between the criminal conduct and work and life matters is to be the basic condition for setting up the collateral consequences of a serious crime, and there are no restrictions on matters that do not have a necessary causal relationship. Fourth, the crime of negligence is set up to be less than the collateral consequences of intentional crimes. The occupation restrictions of the negligent offender are limited to the occupation in which the offence relates. Fifth, the offender's relatives and persons with specific social connections generally do not set collateral consequences. Only for a very small number of occupations involving special positions such as political security, occupational restrictions are set for the offender's relatives and persons with specific social relations. The third is to establish a system for expungement of criminal records for misdemeanors. Set the period for expungement of criminal records at five years, and expunge criminal records at the end of five years from the date on which the criminal punishment is completed.
3.Improve the system of rights and remedies. The first is to establish a complaint review system. Grant the right to seek relief through litigation on the bearers of the consequences of the crime. If a party believes that the application of the collateral consequences is illegal, it may appeal to the judicial organ, and the judicial organ shall make a ruling on whether to revoke the collateral consequences after substantive examination. The second is to establish a system for the restoration of rights. The law stipulates how to restore the rights and qualifications of offenders who have been deprived or restricted as a result of the crime, clarifying the time for the termination of the collateral consequences, as well as the subject, time, and procedure for the restoration of rights. The third is to establish a rule of law publicity system. Distinguish between different entities, and separately establish rule of law publicity duties. Through vigorous publicity by judicial organs and relevant administrative organs, create a positive social atmosphere in which the consequences of crimes are applied, so as to achieve the best results in the application of the system.
4.Actively carry out judicial suggestion work. In response to current issues such as the improper application of the incidental consequences of crimes affecting the return of offenders to society, judicial organs may promptly submit judicial recommendations to departments such as for education, human resources and social security, to promote the improvement of relevant management systems, standardize restrictions on offenders' schooling, employment, and social activities, and minimize the improper impact on the premise of effectively preventing offenders from committing crimes again. In particular, restrictions and influences on the relatives of offenders should be strictly controlled, and restrictions on the relatives of offenders in areas such as schooling, enlistment, and employment should not be imposed unless necessary.
Joint Research Group of Shandong Provincial High People's Court and Capital University of Economics, Moderator: Fu Guoqing, Liu Chuanzhuan).
*: People's Court Daily.