Abstract:A comparison of the suspension of custodial sentences in Germany, Japan and China's Taiwan Province reveals that, in these countries or regions, criminals with mental illness or other serious illnesses, pregnancy, breastfeeding or inability to take care of themselves thus failing to serve their sentences in an incarceration facility are allowed to seek medical treatment, give birth to a child, breastfeed, or be cared for outside the incarceration facility, but the corresponding period of time is not counted as part of the sentence, in contrast to China's practice of counting the period as part of the sentence. The theoretical basis of the suspension of custodial sentences in these countries or regions is the spirit of humanitarianism and the constitutional principle of safeguarding the basic rights of prisoners. However, the treatment of criminals during the period of medical treatment, childbirth, and breastfeeding outside the prison is, after all, different from criminal penalty. An excessively long period of time outside prison will disproportionately affect the effectiveness of the execution of the penalty and the fulfilment of its purpose, and undermine public interest. Therefore, the time spent outside prison should be treated as a suspension in the execution of the sentence and not be counted as part of the sentence. Drawing on overseas practices and weighing the interests of protecting basic rights and fulfilling the purpose of the penalty, it would be appropriate for China to transform the temporary service of a sentence outside an incarceration facility into a deferment or suspension of the execution of custodial sentences when revising the Criminal Procedure Law. Meanwhile, to discourage some criminals from obtaining an indefinite reprieve or suspension of execution, it is necessary to improve the control of the approval process and the system of guarantees, tighten the conditions for admission to prison, and strengthen the construction of prison hospitals, so as to further improve the construction of supporting mechanisms.

Keywords: temporary service of a sentence outside an incarceration facility; reprieve; suspension of execution; protection of basic rights; fulfillment of the purpose of criminal penalty

 

Author:Dong Kun, research fellow, CASS Institute of Law; professor and doctoral supervisor, Law School of the University of CASS;

Source: 5 (2025) Legal Forum.