Research on the Legal Control of Dangerous Individuals
|Course||Constitutional and Administrative Law|
|Keywords||danggerous individual the legal control personal dangerousness educationtreatment security measures|
Dangerous individuals appeared in large numbers in the later half of the19thcenturyin Europe. At that time， industry developed rapidly and the number of unemployedpersons also increased rapidly. As a result， crimes witnessed a sharp increase andrecidivists and habitual criminals constantly emerged in large numbers. Under suchcircumstance， the penalty could not function effectively. Therefore， the security measuresystem emerged to meet the need of coping with dangerous individuals and guarding socialsafety. For it placed emphasis on the correction and education of dangerous individuals andbeforehand prevention， the security measure system was recognized and developed in theworldwide at the time of its creation. Since the reform and opening policy， our countrywas in the transitional period and the economy developed rapidly， large quantity of ruralpopulation rushed into the cities; therefore， unemployed persons increased continuouslyand major crimes occurred constantly， the social security situation became worsening anddangerous individuals appeared in large numbers. To maintain social stability，our countrydepended on the penalty to punish criminals on one hand; on the other hand， thereeducation through labor system was employed in a lager scope， measures such ashousing and reeducating， compulsory abstinence， compulsory treatment and juvenilediscipline were also used to reinforce the strike on criminals and to stifle the increase ofcrimes. However， most of the legal measures on the controlling of dangerous individuals，which were born in the era of the planned economy， have distinct institutional defects.These measures have the problem of serious invasion of people’s legal rights， eitherseeing from the substantive perspective or from the procedural angle; they do not accordwith the modern concepts of democracy，rule of law and human rights and go against withthe international human rights intervention our county has signed. Based on the legalpractice of legal measures such as reeducation through labor， housing and reeducating inall these years and referencing on the effective security measure system about criminals prevention in the worldwide， this paper thus elaborates on theory of improving andperfecting the legal control on dangerous individuals.Dangerous individual is the core of research on legal control on dangerous individuals;however， there is no such concept as dangerous individual both in the legal theory andpractice in our country. Therefore， the first chapter of this paper begins with the origin ofthe concept of dangerous individual and analyzing the social， political， ideological andscientific basis of the creation of the dangerous individual concept. Then， this paperdefines the concept of dangerous individual under the context of rule of law in our country:dangerous individuals refer to the individuals formed the criminal personality based on theenvironment or the individual factors, implement the behavior harmed society, and there ispossibility they will continue to implement the illegal behavior.Personal dangerousness is the basis and precondition of placing legal controlmeasures on the dangerous individual. The second chapter investigates on the historicalorigin of the personal dangerousness theory and tries to discuss on the feasibility ofevaluating personal dangerousness，its evaluation system and evaluation factors on thebasis of classifying personal dangerousness from social harmfulness and subjectiveviciousness.Should the value orientation of legal control on dangerous individual place moreemphasis on freedom or on order? What principles should be employed for the applying oflegal control on dangerous individual? The answers to these questions play a fundamentalrole in the construction of this system. The third chapter is divided into two parts， the firstpart deals with the basic value objectives of legal control on dangerous individual，describing that the core value of legal control on dangerous individual is freedom and thatits basic value objective is order， and finally that the overall value objective is theharmonious unity of freedom and order; the second part explicitly talks about the fourprinciples that should be observed while placing legal control on dangerous individual，including principle of regulating by law，principle of proportionality，correction-orientedprinciple and the principle of due process.To whom should such legal control on dangerous individual be applied? What kind ofmeasures should the legislation sets? What’s the proper time limit of the legal controlmeasures? The fourth chapter presents advice on improving and perfecting the legal control measures on dangerous individual from the perspective of substantive law，with theanalysis of problems on the target，conditions and time limits when applying systems suchas reeducation through labor，housing and reeducating: on the applicable objects, mainlyincluding recidivism and recidivist, persistent offenders, minors who have personaldangerousness, of mental patients who have seriously harm social behaviors, etc.; on theapplicable conditions, they should have personal dangerousness subjectively and illegalbehaviors objectively; on the applicable term, it is advisable from3months to2years.The procedural problem of legal control measures on dangerous individual is theemphasis of modern counties that governed by law. The fifth chapter describes about theapplication procedure of legal control measures on dangerous individual，its execution andsupervision mechanism, believe that the public security organ should initiate investigationand application, try and decide the case by the people’s court; Performe it by the judicialadministrative organs; operation of the power the power supervision should beimplemented, especially procuratorial supervision and social supervision.