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🌏 | Hong Kong Supreme Court cancels media mogul's bail, violates national security law


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Hong Kong Supreme Court cancels media mogul's bail, violates national security law

 
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Under the National Security Law enacted on June 6, the crime of collusion with foreign powers is up to life imprisonment.
 

[Hong Kong XNUMXst Reuters] – Hong Kong Court of Final Appeal (Supreme Court) is guilty of violating the Hong Kong National Security Law (National Security Law) on the XNUMXst ... → Continue reading

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life sentence

life sentence(Shushinkei) is a life imprisonment for liberty deprivation and imprisonment in a penal institution.[1][2].

Execution theory

concept

Life imprisonment is a life sentenceCustodial sentenceAs a general rule, it is a sentence of life imprisonment unless it is released on parole.[3]..This does not mean an absolute irregular sentence that does not set a sentence or cap, but means that there is no end to the sentence, that is, the sentence lasts a lifetime.[4][5][6].

However, the terminology of life imprisonment is ambiguous, and life imprisonment and life imprisonment are conceptually the same as the arrangement of life imprisonment for those with parole and life imprisonment for those without parole. There is an arrangement that there are various combinations of these and the parole system.[3]..In the international context, life imprisonment and life imprisonment are conceptually the same, and it is less likely to cause confusion if there are various combinations of these and the parole system.[3]..For example, in English, the word "Life imprisonment" is used.[7], Because life imprisonment in English and lebenslange Freiheistsstrafe in German include both with and without parole.[3].. Life imprisonment is translated as "Life imprisonment"Indefinite imprisonment," "indefinite detention," "indefinite imprisonment," etc.[8][9][10][11][12][13].

Sort

Life imprisonment includes absolute life imprisonment without parole and relative life imprisonment with parole.[3].

Looking at the criminal code and parole code in each country, the "minimum period for parole eligibility" is often longer than in Japan, but in a relatively large number of countries, all indefinite prisoners can be released on parole. Sex is recognized[14], For exampleKorean Penal CodeArticle 72 paragraph 1[15]In 10,German criminal lawArticle 57a[16], Austrian Penal Code Article 46, Paragraph 5[17]15 years, Article 132-23 of the French Criminal Code[18]Is 18[19], Romanian Penal Code Article 55, Paragraph 1[20]20 years, Article 78, Paragraph 3 of the Polish Penal Code[21], Russian Criminal Code Article 79, Paragraph 5[22], Canada Penal Code Article 745, Paragraph 1[23][24], Taiwan Penal Code Article 77[25]25 years, Article 176 of the Italian Penal Code[26]Recognize the possibility of parole after 26 years.On the other hand, life imprisonment without parole actually exists in China, the United States, the Netherlands, etc.[27]..The Ministry of Justice has often explained the situation in these foreign countries in the Diet's response and comparative law materials, saying, "Looking at other countries, only a relatively small number of countries have adopted life imprisonment without parole." But[28], This fact is still not well known.

Even in countries that have adopted absolute life imprisonment, there is often room for commutation and amnesty.[3]. AlsoConvention on the Rights of the ChildTherefore, if you are under the age of 18 at the time of the crime, absolute life imprisonment is prohibited in principle.

20181/18,MadrasThe High Court puts life imprisonment inmates on his wifeInfertility treatmentAllowed to be temporarily released for two weeks in the name of[29].

Life imprisonment in the West

America

In the United Statesア ラ ス カ 州Life Imprisonment Without Parole was introduced in all states where the death penalty was abolished.[3].

Illinois
IllinoisThen, in January 2011, the death penalty abolition bill was passed by the parliament, and the absolute life sentence became the maximum sentence.[3].
Texas
TexasIn 2005, an absolute life sentence was introduced while retaining the death penalty.[3].

The United Kingdom

Life imprisonment was the highest in Britain due to the abolition of the death penalty for murder in 1965.[3].

There are two types of life imprisonment in the United Kingdom: Mandatory Life Sentence, which is required for a specific crime (murder), and Discretionary Life Sentence, which is sentenced at the discretion of the court.[3]..Although there is an indirect effect that it is difficult to carry out parole operation as in the past, it can be said that it is theoretically insufficient to base the further effect on raising the fixed-term sentence.

In the UK, if life imprisonment is not given a Whole Life Order, a minimum term of imprisonment (Tariff) will be set.[3]..After the minimum period of imprisonment, the Parole Board will decide on parole.[3].

Life imprisonment debate in Japan

Overview

There is no possibility of rehabilitation in the death penalty, but there is an opinion that life imprisonment without rehabilitation should be introduced because life imprisonment under the current criminal law has rehabilitation.There is also an argument that the death penalty should be abolished and then introduced.As a trend related to this, in 2003, the "Federation of Parliamentarians Promoting the Abolition of the Death Penalty" introduced a heavy indefinite imprisonment and a heavy indefinite imprisonment without parole, suspended the execution of the death penalty for a certain period of time, and both Houses of Representatives. The purpose is to establish a death penalty system investigation committee inBill on establishment of heavy life imprisonment and establishment of death penalty system investigation committeeWas announced, and preparations were made for submission to the Diet, but submission was abandoned.

However, in April 2008, the parliamentary group once again said,Unanimous Bill for Creation of Heavy Life Imprisonment and Death PenaltyWas announced, and in May of the same year, the parliamentary group and those aiming to establish a heavy indefinite sentence from the standpoint of surviving the death penalty jointly launched the bipartisan parliamentary federation "Sentence System Thinking Group" and its establishment. However, the majority of parliamentarians did not agree.

Advantages and disadvantages

Regarding life imprisonment without parole, while those who emphasize the above-mentioned effects have expressed their support, some abolitionists have expressed the opinion that humanitarian problems are as great as the death penalty. In addition, some of the death penalty retentionists said, "The sentence that connects a person to a prison for the rest of his life is a more cruel sentence than the death penalty."[30]Opinions that question the reality of prisons in terms of maintaining order and detention costs[31]Has been stated.

Main opinions

According to Article 28 of the Penal Code, even those who have been sentenced to life imprisonment can be sentenced to life imprisonment for 10 years or more and can be granted parole "when there is a state of repentance". Is confirmedPenal institutionThe total number of people detained in 1842[32].

However, this only stipulates the "potential" of parole and is not systematically guaranteed on the premise of future parole.Also, "when there is a state of repentance" does not mean merely a state of expressing a remorse.Ministry of JusticeThe decree "Rules for social treatment of offenders and juvenile delinquentsIt is supposed to refer to a state that meets the criteria of Article 28.[33].

However, regarding such a parole system for life imprisonment inmates, misunderstandings that differ from the actual situation have been disseminated, centering on the operational status, and it is a fact that they have influenced the debate in no small measure.

Critical opinion

従前においては、十数年で仮釈放を許可された例が少なからず(特に1980年代までは相当数)存在したが、1990年代に入ったころから次第に運用状況に変化が見られた。2003年以降では現在までのところ仮釈放を許可された者は、全員が20年を超える期間刑事施設に在所していた。それに伴い仮釈放を許可された者における在所期間の平均も、1980年代までは15年-18年であったところ、1990年代から20年、23年と次第に伸長していき、2004年以降では25年を超えるものとなっており、2004年が25年10月、2005年が27年2月、2006年が25年1月、2007年が31年10月、2008年が28年7月、2009年が30年2月、2010年が35年3月、2011年が35年2月、2012年が31年8月、2013年が31年2月、2014年が31年4月となっている[34][35]..Furthermore, in the past, as of 1985, seven people had been in penal institutions for more than 30 years.[36]As of December 2014, 12, 31 people have been in the penal institution for more than 30 years, and 182 people have died in the penal institution from 2005 to 2014 (so-called prison deaths). Has become[37].

However, because such changes have not been made public until recently, "even those who have been sentenced to life imprisonment will be released on parole after serving 10 years, 10 years, or 20 years in prison. The misconception that "it is normal" became widespread in the 1990s and 2000s, and it was sensationally taken up as one of the grounds for the introduction of life imprisonment (heavy life imprisonment) without parole.[38].

Other opinions

On the other hand, in recent years, there have been opinions that overemphasize the difficulty of parole in life imprisonment, especially those who oppose the introduction of life imprisonment without parole.For example, "Despite the existence of hundreds of indefinite prisoners, the number of parolees released in recent years is several per year, so the parole rate is in the 0% range, and parole is hopeless for most prisoners. "There is" "The 2005 revision of the Penal Code raised the upper limit of fixed-term sentences from 20 to 30 years, so life imprisonment inmates are required to be sentenced to 30 years or more even if they are released on parole."

Indeed, as of the end of 2013, there were 1842 life imprisonment inmates in the penal institution, and there were 6 parolees in the same year, so using these figures, the parole rate in the 0% range is not true. There is[39], It has been pointed out that there is a problem in using these numbers.In other words, as the number of life imprisonment sentences has increased in recent years, about 40% of them are those who have not passed 10 years when they can be released on parole, and those who have not passed 20 years when they are less likely to be subject to parole. It is pointed out that there is a problem in the calculation method to add these persons because it accounts for about 75% of the total.Also, even if a prisoner is not released on parole that year, there is still the possibility that he will be released on parole continuously as long as the prisoner survives, so it is not a property that can be calculated by a simple calculation method. It should be noted that there is no such thing.

また、刑法改正によって有期刑の上限が30年に引き上げられたといえども、前述のように現制度における懲役30年も絶対的な懲役30年ではなく、許可基準に適合すれば、30年の刑期満了以前に釈放することが可能であり、刑法の規定上はその3分の1にあたる10年を経過すれば仮釈放の「可能性がある」ことを留意しなければならない。仮に、重い刑の者は軽い刑の者より早く仮釈放になってはならないという論法を採れば、30年の有期刑は、29年の有期刑より重い刑であるから、29年未満で仮釈放になってはならないということになり、その場合、仮釈放制度そのものの適用が否定されてしまうからである。無期懲役と懲役30年の受刑者において、両者とも仮釈放が相当と認められる状況に至らなければ、前者は本人が死亡するまで、後者は30年刑事施設に収監されることになり、片方が矯正教育の結果仮釈放相当と判断され、もう片方はその状況に至らなければ、片方は相当と判断された時点において仮釈放され、もう片方は刑期が続く限り収監されることになるし、両者とも顕著な矯正教育の成果を早期に示せば、理論的にはともに10年で仮釈放が許可されることもありうるのであり、矯正教育の成果や経緯において場合によっては刑事施設の在所期間が逆転しうることは仮釈放制度の本旨に照らしてやむをえない面もある[40][41].

A country without life imprisonment

スペイン
In Spain, the death penalty was abolished in 1978, but there was no life imprisonment, and the maximum sentence was 40 years.[3]..However, in 2015, a system was established to extend the 40-year sentence of imprisonment at the court's discretion.[3].

footnote

[How to use footnotes]
  1. ^ Ministry of Justice> Ministry of Justice Overview> Explanation of Each Organization> Internal Department> Protection Bureau> "Study Group on Parole of Indefinite Imprisonment> Report of" Study Group on Parole of Indefinite Imprisonment ""
  2. ^ Daijisen "life sentence'
  3. ^ a b c d e f g h i j k l m n o 59th Human Rights Defender Symposium 3rd Subcommittee Considering the Abolition of the Death Penalty and Reform of the Imprisonment Keynote Report p.174-175 Japan Federation of Bar Associations(2016 10 年 月 日 6)
  4. ^ "Outline of life imprisonment and parole system'
  5. ^ "Article Dismissal Law" Koubundou Publishers (2nd edition, December 2007) p.12.ISBN 978-4-335-35409-0..Hiroshi Kiyohara "This one book before being selected as a judge" Jiyu Kokuminsha (First Edition, December 1, 2008) p.12.ISBN 978-4-426-10583-9..Judiciary Association "Overview of Criminal Law" (7th edition) p.155.
  6. ^ Daijisen "Life imprisonment'
  7. ^ "Revised March 21 Legal Terminology Japanese-English Standard Bilingual DictionaryP.282
  8. ^ Ministry of Justice Criminal Bureau "Law Glossary-English Edition" p.179
  9. ^ Bernd Getze "Japanese-German Legal Glossary" Seibundo (October 2007) p.10.ISBN 978-4-7923-9166-9
  10. ^ Atsushi Naono "Romanian Classification Words" Daigaku Syorin (August 1986) p.08
  11. ^ Toshio Yamaguchi, "French Law Dictionary", University of Tokyo Press (March 2002) p.3.ISBN 978-4-13-031172-4
  12. ^ Ministry of Justice Criminal Bureau Foreign Law Study Group "Law Glossary Translation-French Edition" p.190
  13. ^ Tsuneo Inako "Political Law Russian Dictionary"Nauka Publishing(February 1992, 2) p.20.ISBN 9784888460279
  14. ^ However, this is just a "potential" and is not guaranteed by the system on the premise of future parole.
  15. ^ "Korean Penal Code"(Korean)
  16. ^ "German Criminal Code"(German)
  17. ^ "Austrian Criminal Code"(German)
  18. ^ Ministry of Justice Secretariat Judicial Law Investigation Department "New French Criminal Code" Hosoukai (1995)
  19. ^ However, it can be extended to 22 years by a special judgment.In addition, only those who killed children under the age of 15 and committed rape or other barbaric acts before, during, or during that time can be extended up to 30 years with a special judgment, and parole is not permitted. There is a special case that you can also make a decision.However, even in the latter case, after 30 years, it is possible to apply for an appraisal by a medical expert to the Court of Cassation, which is located at the top of the court organization, and cancel this decision.
  20. ^ "Romanian Criminal Code"(English)
  21. ^ Written by AJ Schwartz / Translated by Haruo Nishihara "Polish Criminal Law and Sports Law" Seibundo (May 2000).ISBN 978-4-7923-1525-2.
  22. ^ "Russian Criminal Code"(English)
  23. ^ "Canadian Criminal Code"(French)
  24. ^ However, this is the case for first-class murder and another second-class murder.In the case of second-class murder, the court is supposed to determine the period of eligibility to apply for parole within a range of 1 to 2 years.
  25. ^ "Taiwan Criminal Code"(Formosan)
  26. ^ "Italian Criminal Code"(Italian)
  27. ^ For example, Article 81 of the Chinese Criminal Code sets the term of parole for life imprisonment to 10 years, but due to the 1997 revision of the criminal law, "for those who have been sentenced to life imprisonment or imprisonment for a term of 10 years or more due to violent crimes and cumulative crimes. , Parole cannot be allowed "(indefinite imprisonment), and in the Netherlands, only parole inmates are allowed to be released on parole.In the United States, many states have life imprisonment without parole, and in the United Kingdom, Chapter 21 of the Supplementary Provisions to the Sentence Guidelines states that "cases deemed to be extremely serious murders" You can make a statement that you cannot qualify for life imprisonment. "
  28. ^ For example,165rd Diet Legal Committee No. 3,154rd Diet Legal Committee No. 9, January 2008, 6Asahi ShimbunMinistry of Justice materials published in "Thinking about Tomorrow".
  29. ^ Release life imprisonment for two weeks for murder, "to have a child" AFP (December 2018, 1) Read December 26, 2018
  30. ^ Asahi Shimbun published on June 2008, 6Okiharu YasuokayuanMinister of JusticeRemarks.In addition, for example, in the Asahi Shimbun June 2008, 6, "Koron"Prison officerAnd of the writerToshio Sakamoto"(Indefinite imprisonment inmates without parole) are just waiting for death without the hope of parole, their treatment is as difficult as death row prisoners, and it is difficult to respond without increasing the number of prison officers." However, it is only increasing the number of prisoners who are mentally difficult to deal with.
  31. ^ According to Sakamoto's article mentioned above, the annual budget per inmate borne by the state is 50 yen, and the medical expenses of life imprisonment inmates without parole, which will increase as they get older, are also buried after death. It is said that concrete discussions are needed regarding the fact that the entire fee will have to be borne by the state.Also, the originalProsecutor OfKazuo Kawakami TheMainichi Shimbun editorial"The absolute life imprisonment (due to the abolition of the death penalty) does not result in the death penalty even if a person is killed for jailbreak, so there is a possibility of killing a prison officer."
  32. ^ Documents from the Ministry of Justice Protection Bureauby.
  33. ^ It states, "The disposition that allows parole is when it is recognized that there is remorse and willingness to improve rehabilitation, there is no risk of committing a crime again, and probation is appropriate for improvement rehabilitation. However, this shall not apply if the sentiment of society is not recognized as endorsing this. "Prior to the enforcement of the Rehabilitation and Protection Law, Article 32 of the "Rules on Parole, Temporary Participation and Temporary Discharge, and Probation, etc." had similar provisions, but these four were to be "comprehensively judged". Was there.
  34. ^ With annual correctional statisticsDocuments from the Ministry of Justice Protection Bureauby.
  35. ^ 2004年は25年10月、2005年は27年2月、2006年は25年1月、2007年は31年10月、2008年は28年7月、2009年は30年2月、2010年は35年3月、2011年は35年2月、2012年は31年8月、2013年は31年2月であった。
  36. ^ June 1985, 5Chunichi ShimbunIt depends on the social aspect.
  37. ^ According to the above-mentioned Ministry of Justice materials.
  38. ^ Since the gap between such misunderstandings and the actual operational status has increased, the Ministry of Justice has been disclosing detailed information on the operational status of parole of life imprisonment inmates since December 2008.
  39. ^ According to the above-mentioned Ministry of Justice materials and annual correctional statistics report.
  40. ^ If this is not the case, the choice is to either abolish the parole system together or increase the time to parole for life imprisonment to 30 years.If you choose the latter here, there will be a 30-year difference in the shortest period for parole between life imprisonment and 20-year imprisonment, and if you try to eliminate this difference, you will get a fixed-term sentence of "one-third." It is conceivable to raise the conditions for parole, but in that case it will be necessary to consider the consistency of the entire fixed-term sentence, including short-term sentences, and the discussion will no longer be limited to the issue of life imprisonment, but will be the discussion of the entire criminal detention policy. Become
  41. ^ In the background of discussions by the Legal Affairs Subcommittee when raising the upper limit of life imprisonment, in addition to the statement that the upper limit of 20 years is inappropriate in light of public sentiment, life imprisonment and 20 years of life imprisonment Since there is a lack of continuity in the period during which parole is possible with the sentence, the statement to the effect that the upper limit of the fixed-term sentence should be extended to 30 years to provide continuity in order to eliminate it. Has been made.

References

  • Morishita, Tadashi "Criminal Policy Outline" Seibundo, July 1996, new edition 7nd edition.ISBN 4-7923-1411-9.
  • Morishita, Tadashi, Criminal Policy Issues II, Seibundo, September 1994, 9.ISBN 978-479231345-6.

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