Original title: rule of law lesson juvenile rape can be criminal reconciliation, what does bail await?
Surging journalist Sun Xiaomi, an intern of Zhuang Bank
A controversial case involving juvenile rape has sparked public controversy. Recently, an article published by the People's Procuratorate of Lushan County, Henan Province, through an official micro-blog, "Lu Shan Junior High School Publishers Intervened by Impulsive Criminal Prosecutors" caused controversy on the Internet, and public opinion pointed out that the prosecution was not doing the right thing.
A number of legal professionals analyzed Peng Chao News (www.thepaper.cn) that changing the arrest measure to a bail pending trial does not mean acquittal and there is no illegal phenomenon. However, in view of whether the rape case can be "settled", the industry still has different cognitions. It is said that this action goes beyond the scope of criminal reconciliation in the Criminal Procedure Law, but there are also views that both parties can reconcile under the auspices of public security organs, procuratorial organs and courts, and finally unilaterally issue a letter of understanding.
Rape is a misconception that "bail out does not mean innocence".
On September 21, the article published by the Weixin Public Name "Lu Shan Procuratorate" said: Xiao Zhao, 16 years old, is a junior middle school student in Lushan County. In the summer vacation, Xiao Zhao and the 17 year old girl forced sexual relations. In July 24th, the Lushan Mountain County People's Procuratorate approved the arrest decision.
The article said the prosecutor called the parents together and contacted the local mediation committee to reconcile the two sides. "Everything is for the growth of the child first." Eventually, the parents of both sides "iced the old suspect" and signed a settlement agreement voluntarily, Xiaozhao parents compensated Xiaohua parents 80,000 yuan.
The article also said that the prosecutors of the Lushan People's Procuratorate hastened to change Xiao Zhao's compulsory measures from arrest to bail pending trial before the school began in early September, and Xiao Zhao was able to return to school when the school began.
Peng Mei News noticed that the article was published immediately after the public opinion disturbance, some of the wording was accused of improper. For example, "forgive and forget" and "compromise".
"In general social cognition, how can rape be reconciled? And how to "let go of the past?" Zheng Fan, a procurator from the People's Procuratorate of Huangpu District in Guangzhou City, said that the two key words involved in the matter were rape and reconciliation.
Zheng Fan said that according to the current information, the procuratorial organs only changed "Xiao Zhao's compulsory measures from arrest to bail pending trial" and "there is no illegal problem, but many people have the impression that changing to bail pending trial is"acquittal"and there is a deep misunderstanding.
Why do we need to change bail pending rape to minors? Zheng Fan explained that, first of all, the Criminal Procedure Law expressly stipulates: "For juvenile criminal suspects, defendants should strictly restrict the application of arrest measures." Secondly, under the circumstances of judicial practice, many lawyers believe that the rate of pretrial detention is too high. Therefore, reducing the rate of pretrial detention is a direction and trend of judicial practice in China. "There is nothing wrong with it."
Although the release of bail is released, it is conditional release. Zheng Fan said that bail and arrest, like criminal compulsory measures, but arrests must be held in detention before the verdict. However, if the sentence is made, the sentence is still the same as serving a sentence, but it will not be broken until the guarantor pending trial.
According to the criminal spirit and concept of the presumption of innocence, all cases should be guaranteed unless they are required to be arrested under the Criminal Procedure Law. Deng Xueping, a former prosecutor and senior partner of Beijing-Heng Law Firm in Shanghai, said the bail pending trial was only a compulsory measure. It did not mean that the case was over. Whether the case was over depended on whether the procuratorate prosecuted and how the court decided. The public should not simply think that it would be okay after bail pending trial.
"In addition to considering the specific circumstances of the case, but also to examine the local judicial practice, if the local case against the general case is custody as a normal, this case for mediation compensation of 80,000, he will be bailed out, which is a problem." Deng Xueping reminded.
Lushan County procuratorial organs of the problem appeared in the propaganda, they used a wrong word: "ice to clear up previous suspects." Zheng Fan admits that, in any case, the trauma of rape can hardly be completely healed even if it is comforted. "This phrase is really improper."
"When propagandizing a case, we should accurately grasp the public's psychology and values, if excessive propaganda is likely to be counterproductive." A former judicial administration system has made suggestions.
Can rape be reconciled? The industry's views are not consistent.
Whether the rape case can be applied to the reconciliation system is also the focus of controversy in this case. According to the Criminal Procedure Law, criminal reconciliation can only be applied to two types of cases: one is caused by civil disputes, suspected of criminal cases stipulated in Chapter IV (Crime of infringement of citizens'personal rights and democratic rights), Chapter V (Crime of infringement of property), which may be sentenced to three years' imprisonment or less; the other is the crime of dereliction of duty. Negligent criminal cases may be sentenced to seven years' imprisonment.
"The crime of rape does not belong to the type of reconciliation case." Deng Xueping also believes that the criminal reconciliation system itself is reasonable, reflecting the flexibility of the judiciary, intended to restore social relations through judicial means, to help the damaged social relations to be sewn up, to help the victim to get more comfort, so that criminal suspects through confession and repentance, reduce social dangers.
Deng Xueping said that the criminal reconciliation procedure initiated in this case violates the provisions of the Criminal Procedure Law and does not conform to the scope of criminal reconciliation in public prosecution cases. In addition, the crime of rape is a relatively serious violent crime against the rights of the person, the starting sentence is more than three years, if its mediation compensation after bail pending trial, is it appropriate?
"Rape can also be reconciled." Zheng fan, the prosecutor, held different opinions. He explained that even if it was not within the scope of the above-mentioned criminal reconciliation, both parties could reconcile on their own. Finally, a letter of understanding was issued unilaterally. "Only criminal reconciliation is carried out under the auspices of public security organs, procuratorial organs and courts."
Zheng Fan believes that although the minimum penalty for rape is three years in prison, but the suspect is a minor, there is a statutory mitigation of punishment, or may be sentenced to less than three years. Therefore, criminal reconciliation can be applied.
The concept of restorative justice is worth encouraging.
Peng Mei News noted that in recent years, in the judicial concept level, the procuratorial organs have always adhered to the principle of "education-based, punishment-supplemented" for juvenile delinquency, so as to achieve "less arrest, cautious prosecution, less imprisonment" and reserve a channel for the minors involved to return to society.
Data from the Supreme Procuratorate showed that in the first 11 months of 2017, procuratorial organs nationwide arrested 26.1 million juvenile suspects, arrested 13.1 million people, prosecuted 39,000 people and prosecuted 88,000 people. The rates of non-arrest and non-prosecution were 33.4% and 18.4% respectively, up 1.8 percentage points and 3.4 percentage points compared with the same period of the previous year.
"Strengthening the education and rehabilitation of juvenile offenders is a controversial but necessary task." The aforementioned judicial administrators said that this is an extension of the functions of the procuratorial organs, many people believe that the juvenile offenders directly sent to prison is the best choice for individuals, society, and cheerful. But from a practical point of view, it is better to do a good job in juvenile probation. But this practice for the procuratorial organs and courts, in fact, is hard to please, is likely to cause controversy.
Zheng Fan's understanding is that the principle of Criminal Procedure Law on juvenile delinquency is six words: "education, persuasion, salvation." As a judicial organ, in any case, since the juvenile, you have to find ways to make him confess his guilt and repent, so that he can reform and re-integrate into society.
At the same time, this does not mean ignoring the victims of minors. From the information provided at present, the procuratorial organs have done a lot of things, such as asking psychological counselors to counsel the victims of psychological counseling, etc. "The concept of restorative justice of the procuratorial organs should be encouraged." Zheng Fan said.
In addition, about 80,000 compensation, has also been extended to "take money to buy life" and "pay money without jail" and other queries. Deng Xueping holds that in judicial practice, more often than not, criminal suspects "want no money, want to kill one." For the victims, in addition to allowing criminals to do more years in prison, there is no other compensation. The procuratorial organs intend to do their work, let the suspects pay money, obtain the victim's understanding, and achieve the greatest extent of repair. Supplement.
Editor in chief: Zhang Yiling
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