(IV) Putting the criminals who serve their sentences outside the prisons back into the prisons should be conducted according to law to avoid random interpretation and possible infringements to the rights of prisoners. Article 28 of the original Prison Law stipulated: "After the circumstances causing temporary execution outside prison disappeared, if the prisoner has not completed his term of sentence, the public security organ in charge of the execution shall without delay inform the prison to put the prisoner back into prison; if a prisoner has completed his term of sentence, the prison that originally held the prisoner in custody shall handle the formalities for the release. If a prisoner died during the period of temporary execution outside prison, the public security organ shall, without delay, inform the prison that originally held the prisoner in custody about the death." The amended Prison Law stipulates: "After the circumstances that a prisoner who serve his sentence outside the prisons should be put in prison according to criminal procedure law emerge, the community execution organization shall without delay inform the prison to put the prisoner back into prison; if a prisoner has completed his term of sentence, the prison that originally held the prisoner in custody shall handle the formalities for the release. If a prisoner died during the period of temporary execution outside prison, the community correction organ shall, without delay, inform the prison that originally held the prisoner in custody about the death." By comparison of these two versions, we can find that there is a limitation of "according to criminal procedure law" before the "circumstance that a prisoner who serve his sentence outside the prisons should be put in prison." This clarifies that "putting criminals back into prison" should be conducted according to law so to avoid random interpretation on the scope of "putting back into prison," which may harm prisoners' rights.

(V) "May" was changed into "shall," indicating the modified Prison Law strengthens the protection of the prisoners' rights. Item 2, Article 33 of the Prison Law was modified as: "A parolee shall have community correction according to law and shall be executed by community correction organs. Where a parolee during the test period of parole commits any acts in violation of laws, administrative rules and regulations or the regulations of the public security department under the State Council on the supervision and control of parolees, if such acts do not constitute a new crime, the community correction organ shall make a written recommendation for the cancellation of parole to the people's court. The people's court shall within one month from the date of receiving the written recommendation examine it and make a ruling thereon. Where the people's court has ruled to cancel the parole, the parolee shall be handed over to the prison for custody by the public security organ." In the amendment, the "public security organ" was changed into "community correction organ," more importantly, "if such acts do not constitute a new crime, the public security organ may make a written recommendation for the cancellation of parole to the people's court" was changed into "if such acts do not constitute a new crime, the community correction organ shall make a written recommendation for the cancellation of parole to the people's court'. It's not a simple difference between words to change "May" into "shall". We know that "may" legally shows the trend and it does not mean one has to do that; however, "shall" shows that one have to do that in the certain circumstance. That is to say, if a parolee in community correction does not constitute a new crime, the community correction organ has to make a written recommendation for the cancellation of parole to the people's court, instead of "may" or "may not" do that as stipulated in the previous law. This undoubtedly increased the protection of the rights of the parolees. In addition, Item 2 of Article 34 and Article 60 of the Prison Law also changed some legal jargons in order to go with the amended Criminal Procedure Law.

IV. China Needs to Further Strengthen and Improve Prisoners' Human Rights Protection in the Process of Its Legal System Construction

With the implementation of the modified Prison Law in China, the protection of prisoners' rights will surely be further improved. However, owing to the limited modification, the major problems in the legal system construction of human rights protection in prisons are still the imperfect prison laws and incomplete institutions.

Go to Forum >>0 Comment(s)