현행 중국감옥법의 입법 및 시행에 관한 소고

Abstract

One of the characteristics for execution of punishment in China is decentralization into different state agencies. Due to such pluralized punishment execution, discord of duties, careless business, and dissonant between each state agency are becoming serious issues. The current Prison Law is not sufficient to harmoniously and reasonably regulate the prison-related affairs operated throughout the entire criminal law. The Prison Law, together with the Criminal Law and the Criminal Procedure Law, are regarded as the three pillars of the criminal law system in China. The current PRC Prison Law, however, has only a total of 7 chapters and 78 articles that are included in general provisions, particular provisions, and addendum. Hence, several issues have been raised in the legislation and enforcement of the Prison Law. For example, in the legislative perspective, collisions with the Criminal Law and the Criminal Procedure Law, shortfalls and blanks of the legislature texts, and vague and ambiguous provisions are becoming more and more problematic. There are problems during the enforcement of the law as well: limited scope of the target for punishment enforcement, lack of legal provisions regarding the mitigation of sentence and release on parol, handling of deaths during imprisonment, weak legal binding force, and disparation of legal provisions from the practice. Recent punishment execution status of China shows that substantial tasks and discretions are given to the public security agencies. Currently the people's courts mainly handles criminals sentenced to death penalty, fine, or confiscation of property, while the public security agencies mainly handles the matters regarding enforcement of remaining sentences after suspension or parole release, temporal service of sentence outside of the prison under surveillance, deportation of aliens, and deprivation of political rights. This reflects the current state where the public security agencies are handling the tasks ought to be carried out by the prison institution. To resolve such problems, the article suggests that prisons will be able to independently extend the prison-related affairs and tasks if the Prison Law can be replaced by the Criminal Execution Law. This replacement will resolve the conflicts and discord among different state agencies with respect to punishment execution, thereby enabling prisons to independently carry out punishment execution.