As a law, the subject is undoubtedly very important, and the subject is the premise and basis for defining the boundary of responsibility.
First, is the subject of community correction a single subject or multiple subjects?
The author believes that community correction should be a multi-agent participation and multi-agent cooperation law, just like the subject of criminal proceedings. Community correction law is not the management law of community correction, it not only stipulates the specific implementation subject of community correction, but also is a comprehensive law including decision-making organs, execution organs, supervision organs and other participants. Whether it is the original implementation method of community correction or the second draft of community correction law, it actually embodies the following view:
Such as "Measures for the Implementation of Community Correction"
Article 2 The judicial administrative organs shall be responsible for guiding, managing and organizing the implementation of community corrections.
The people's court shall make a judgment, ruling or decision on defendants and criminals who meet the applicable conditions of community correction according to law.
The people's procuratorate shall exercise legal supervision over all law enforcement links of community correction according to law.
The public security organ shall promptly deal with community corrections personnel who commit crimes again in violation of public security regulations.
Article 3 Community correction institutions of judicial administrative organs at the county level shall supervise, manage, educate and help community correction personnel. The judicial office undertakes the daily work of community correction.
Social workers and volunteers participate in community correction work under the guidance of community correction institutions.
Relevant departments, village (neighborhood) committees, units where community corrections personnel work, schools, family members or guardians, guarantors, etc. Assist community correction institutions to carry out community correction work.
Article 8 In the second draft of the Community Correction Law, the judicial administrative department of the State Council is in charge of the community correction work throughout the country. The judicial administrative department of the local people's government at or above the county level shall be in charge of the community correction work within its administrative area.
People's courts, people's procuratorates, public security organs and other relevant departments (labor and social security departments, civil affairs departments) shall be responsible according to their respective division of responsibilities, cooperate with each other and restrict each other, and do a good job in community correction according to law.
The people's procuratorate shall exercise legal supervision over the community correction work according to law.
Local people's governments at or above the township level shall set up community correction committees as needed to organize, coordinate and guide the community correction work within their respective administrative areas.
It can be seen that community correction is a multidisciplinary work, which needs the cooperation and support of all participants. In view of this, a coordination mechanism is really needed, and the community correction Committee is set up in the draft correction law based on this. However, because the community correction institutions are set up at the level of the judicial bureau at or above the county level, and the decision-making organs and procuratorial organs are also set up at or above the county level, the establishment of committees in towns and villages will not play a substantial role in coordination and guidance, resulting in the role of committees being empty. The author suggests setting up community correction committees at or above the county level.
Second, what is a community correction institution?
The term community correction institution should appear in the law of criminal procedure law. According to Article 269 of the Criminal Procedure Law, criminals sentenced to public surveillance, probation, parole or temporary execution outside prison shall be subject to community correction according to law, and the community correction institutions shall be responsible for the execution. Accordingly, community correction institutions should be the executive organs of community correction, and the second draft also supports this view. Article 9 Local people's governments at or above the county level shall set up community correction institutions as the executive organs of community correction according to their needs.
However, this leads to a problem: since the Criminal Procedure Law regards the community correction institution as the statutory executive organ of community correction, it should be understood as an independent institution, while the second review draft vaguely adopts the establishment of community correction institutions according to needs. If there is no community correction institution, who will implement community correction? Will it violate the criminal procedure law?
At the same time, as a community correction institution, it should be understood as a relatively independent institution similar to the current community correction administration and community correction detachment, and it is an independent legal person. However, at present, the community correction teams in the whole country are chaotic and uneven. There are community correction administration, community correction brigade, community correction department and community correction unit at or above the county level, and the latter two obviously cannot be called community correction institutions. After the law is passed, community correction departments and community correction units cannot be called community correction. Whether it is necessary for the law to stipulate how to implement the community correction institutions before the establishment of the transitional period, otherwise, the implementation subject will be missing from the date when the law is passed and implemented. The author believes that as a judicial administrative organ, we should also take advantage of this legislative opportunity to actively promote the construction of community correction institutions at all levels, promote the establishment of institutions and pull up the ranks, and take this opportunity to realize the unity of community correction institutions, places, personnel, clothing and equipment.
Problems of Multi-subject Responsibility in the Third and Second Review Papers
At present, one of the biggest objections to the second trial in practice is the unequal rights and responsibilities. There are many reasons why responsibilities and rights are not equal, and I think the most important ones are two:
First, the definition of responsibility is not clear enough. Although the implementation methods and coordination methods clearly stipulate the respective responsibilities of public security organs, prosecutors, lawyers and prisons in community correction coordination, the implementation in many places is not ideal. However, few courts, public security organs and prisons are accountable for community correction, and the coordination between departments is weak, which eventually leads to community correction institutions running around, tired of coordination and suffering from anger everywhere.
Second, the procuratorial supervision of the procuratorial system is constantly overweight, and the management and control of recidivists are overweight at different levels, which has caused serious contradictions between manpower and actual demand under the high-pressure management and control mode in many places, and the actual limited management and control means are seriously contradictory to the management and control requirements.
The author believes that to solve this problem, we must clearly define the issue of power and responsibility. For the second draft, I think the following points need to be improved:
First, for Article 14, the staff of community correction institutions should strictly abide by the Constitution and laws, be loyal to their duties, strictly observe discipline, and be honest and upright.
This article is a general requirement for specifying responsibilities. In my opinion, the staff of community correction institutions should not only abide by it, but also make it clear that all community correction subjects, especially decision-making organs, procuratorial organs, public security organs and prisons, must abide by it. Therefore, the author proposes to amend this article to read: "The staff of public security organs, procuratorates, courts, prisons and community correction institutions should strictly abide by the Constitution and laws, be loyal to their duties, strictly observe discipline, and be honest and devoted to their duties.
"。 In order to highlight not only the responsibility of community correction institutions, but also to enhance the sense of responsibility and mission of public security organs, courts, procuratorial organs and prisons in the implementation of community correction work.
Second, for Article 62, the staff of community correction institutions and other state staff shall be punished if they commit one of the following acts; If the case constitutes a crime, criminal responsibility shall be investigated according to law:
(a) taking advantage of his position or work to ask for or accept bribes;
(2) Failure to perform or improper performance of duties;
(three) corporal punishment, abuse of community correction objects, or violation of legal provisions to restrict or restrict the personal freedom of community correction objects in disguise;
(four) the disclosure of community correction work secrets or other information that should be kept confidential according to law;
(five) to suppress and take revenge on the object of community correction in accordance with the law;
(6) Other violations of discipline and law.
It is suggested to be amended as: "Staff of public security organs, people's courts, people's procuratorates, prisons, community correction institutions and other state staff who commit one of the following acts shall be punished; If it constitutes a crime, criminal responsibility shall be investigated according to law.
In reality, one of the important reasons why employees of community correction institutions are so opposed is the poor coordination among various departments, such as the untimely issuance of legal documents by some courts, untimely sentencing by public security organs, untimely punishment and disposal of public security management, and uncooperative prisons, which lead to many problems in community correction institutions and often lead to passive work.
Although the staff of community correction institutions and other national staff in the second draft actually include the staff of public security organs, people's courts, people's procuratorates, prisons and other departments, the author believes that the law should not only highlight the staff of community correction institutions, making people mistakenly think that the main body of responsibility is the staff of community correction institutions, but should clearly stipulate that "the staff of public security organs, people's courts, people's procuratorates, prisons, community correction institutions and other national staff commit one of the following acts, which constitutes a crime, and shall be investigated according to law.
At the same time, based on this, local community correction institutions should also loosen the lower-level institutions at different levels, instead of adding more weight at different levels. According to the principle that there is no explicit provision in the law that I can't do it and there is no explicit provision in the law that I can't do it, they should effectively slim themselves down, reduce their burden, do their duties entrusted by the law well, and do not increase additional acts that are not stipulated by the law.
Procuratorial organs should also reasonably distinguish the responsibilities of various departments in community correction, not only to supervise the executive organs of community correction, but also to emphasize the requirements of controlling recidivism that cannot be realized and met within the capacity of community correction institutions. They should reasonably define the relationship between the recidivism of community correction objects and the participation of various community correction institutions in the performance of the main responsibility, and build a certain fault-tolerant mechanism under the imperfect personnel mechanism. At the same time, supervision should include all participants in community correction, equal supervision and fair supervision, and supervise the illegal acts of public security organs, people's courts, prisons and other departments in community correction work according to law, so as to promote the close cooperation of various departments in community correction work and promote the healthy and smooth development of community correction work.