1.  Introduction

With the development of social economy and the rule of law, the structure of criminal offenses in China has been transformed to the "era of misdemeanor", and the proportion of misdemeanor cases with less than three years' punishment in criminal cases concluded by the courts nationwide in 2021 will be more than 85%. Misdemeanor governance breaks through the traditional heavy criminalism, which is of great significance to saving judicial resources and promoting the return of offenders to society. However, there are problems such as insufficient theoretical support and sloppy rule design in the current misdemeanor governance, and the unsystematic governance concept and vague rules affect judicial justice. Existing research is still lacking in improving the theoretical system, refining the rules and solving practical dilemmas. Taking DUI cases as an example, they account for the highest proportion of misdemeanor cases (about 2 million DUI cases will be investigated and dealt with nationwide in 2022, with DUI accounting for more than 30% of the total cases), but they are controversial, which highlights the necessity of fine-tuning the research. This paper takes DUI cases as an entry point, combines empirical and normative research, explores the optimization path of misdemeanor governance mode, and provides theoretical references for the construction of a scientific and efficient governance mechanism.

2. Overview of our undifferentiated misdemeanor governance model

2.1. Connotation of a non-discriminatory governance model

China's non-discriminatory misdemeanor governance model refers to the investigation, prosecution, trial and execution of misdemeanor cases with uniform standards and procedures, without distinguishing between the identity of the subject, circumstances and other factors. It emphasizes equality in the application of the law and focuses on achieving the proportionality of crime and punishment through a standardized and regulated judicial process, while at the same time promoting the integration of sentence enforcement and social governance, preventing recidivism, and safeguarding social order and fairness and justice.

2.2. Problems with undifferentiated governance models

The undifferentiated governance model of misdemeanors in China has revealed many problems in practice. At the legislative level, the transformation of criminal legislation has led to a proliferation of misdemeanor crimes and an expansion of the scope of statutory offenses, with some misdemeanor crimes having short sentences but a large total number of cases, such as the crime of dangerous driving, a phenomenon that has been clearly demonstrated in relevant studies[1]. After the abolition of the re-education-through-labor system, the influx of diversion targets exacerbated the case load. Moreover, there is a lack of clear distinction between misdemeanors and felonies in our country, and the criterion of dividing misdemeanors and felonies only by statutory penalties is one-sided[2]. At the practical level, first, there are differences in the understanding and implementation of criminal policy among substantive departments, and the coordinated governance mechanism is not yet sound. The phenomenon of "catching instead of investigating" still exists in public security organs, leading to a high rate of detention in misdemeanor cases; there are unreasonable restrictions on the court's acceptance of cases of non-detained defendants [3]; and part of the judiciary has a conservative attitude toward misdemeanor governance reform[4]. Third, the non-discriminatory governance model is ill-conceived and difficult to respond flexibly to reality. The most typical is ignoring individual differences (such as the physical and mental characteristics of minors), and mechanically applying uniform standards, which is contrary to the legislative purpose of the juvenile delinquency sequestration system of "education as the mainstay and punishment as a supplement", and may impede the re-socialization of minors involved in crimes. Fourth, the absence of a social harm assessment: the lack of a hierarchical evaluation of the social harm of misdemeanours makes it difficult to realize the principle of "appropriateness of crime and punishment", and may lead to a weakening of the preventive function of misdemeanour management.

3. Reflections and mirrors on the governance of misdemeanors in China

3.1. Doctrinal construction of a model of misdemeanor governance in China

In China, the governance of misdemeanors has become an important issue in the field of criminal justice. At present, the management of minor crimes in China has gradually formed a set of doctrinal models with the non-prosecution system, diversion mechanism, community correction and non-custodial sentences as the core pillars, with distinctive local characteristics. The non-prosecution system is the key link in this model. Article 177 of the Code of Criminal Procedure provides a solid legal basis for it, giving the prosecuting authorities discretionary power in cases of minor offenses. In practice, this system has been widely used, with the non-prosecution rate for minor offenses by procuratorial authorities nationwide reaching 15.6% in 2022. However, there are still further discussions in the academic community, and Professor Zhang Mingkai advocates that the scope of application of the non-prosecution system should be further expanded, especially in the cases of first-time offenders and minors, which not only better reflects the criminal policy of leniency and severity, but also effectively reduces the negative impact of the crime label on the future life of the perpetrators, and helps them to return to the society in a better way. The diversion mechanism plays an equally important role. Relying on the provisions of article 214 of the Criminal Procedure Law on summary procedures, judicial organs have separated cases of misdemeanors with a possible sentence of less than three years' imprisonment from ordinary procedures, thus realizing the diversion of complexity and simplicity. This practice has significantly improved judicial efficiency, with the application rate of speedy trial procedures exceeding 40 percent in 2022 and the average trial cycle shortened to less than 10 days. However, scholars such as Chen Ruihua keenly pointed out that there are regional differences in the application standards of the current triage mechanism, which may lead to the problem of judicial inconsistency[5]. Therefore, it is urgent to establish uniform and clear application standards; while pursuing efficiency, the bottom line of procedural justice must be adhered to, ensuring that every misdemeanor case is handled in a fair and reasonable manner. Community corrections and non-custodial sentences are based on Article 2 of the Community Corrections Law, which implements socialized corrections for misdemeanor offenders such as control and probation, with misdemeanor offenses accounting for more than 60% of community corrections recipients nationwide in 2022. Zhao Bingzhi and other scholars suggested that the scope of application of non-custodial sentences should be further expanded, so that more eligible misdemeanor offenders can receive rehabilitation in a community environment, while strengthening the enforcement and supervision mechanism to ensure that the community corrections work is standardized and scientifically carried out, to enhance the effectiveness of education and correctional treatment, and to help offenders better reintegrate into society. The above doctrinal model has achieved certain results in the governance of misdemeanors in China, but still needs to be continuously improved in practice. By optimizing the application of the non-prosecution system, unifying the standards of the diversion mechanism, and strengthening the implementation of community corrections and non-custodial sentences, China's misdemeanor governance will continue to move to a new height, and achieve the organic unity of the legal effect and social effect. China has formed a framework of misdemeanor management with non-prosecution, procedural diversion, and community correction as the pillars, but there are still deficiencies in case-by-case differentiation and subject-specific considerations. Professor Zhang Mingkai advocates expanding the scope of non-prosecution, which is in line with the policy of leniency and severity, and is conducive to the reintegration of offenders into society, but there is a risk of abuse of prosecutor's discretion[6]; scholars, such as Chen Ruihua, have proposed a unified diversion standard to solve the problem of "different judgments in the same case", but it may affect the efficiency of the judiciary because of the rigidity of the procedure[7].

3.2. Comparative legal experience of models of misdemeanor governance

In the area of misdemeanour management, foreign countries have achieved a balance between efficiency and justice through procedural streaming and discretionary power allocation. Germany, as a model of the civil law system, defines misdemeanor crimes in terms of a one-year sentence of imprisonment or a fine, builds a layered procedural system covering investigation, prosecution and execution, and applies simplified procedures such as punishment orders to enhance processing efficiency, but the requirements for the professionalism of judicial personnel and the sophistication of the system are stringent, making it difficult to transplant and adapt to the system. In the United States, the diversion mechanism centered on plea bargaining has enabled more than 90% of the cases to be concluded quickly, significantly alleviating the backlog of cases, but due to the lack of adequate procedural supervision of plea bargaining, it is easy to trigger rent-seeking and fairness challenges. Japan's "simple and speedy adjudication" and "omitted procedures" emphasize the protection of rights while improving speed, but their operation relies on a high degree of national trust in the judicial system, which needs to be cautiously assessed in the light of the differences in judicial cultures[8]. The following is an analysis of the procedural structure, power allocation and value orientation:

3.2.1. United States: consultative governance model led by plea bargaining

In the United States, the plea bargaining system is the core mechanism for misdemeanor management, the essence of which is that prosecutors and defendants reach a plea bargain through prosecution and defense negotiations, and defendants plead guilty in exchange for a reduction in charges or a lighter sentence. Data show that about 90% of criminal cases in the United States are settled through plea bargaining, of which misdemeanor cases account for more than 70%[9]. The system realizes efficient diversion through procedural negotiation, but its limitation is that it may lead to the risk of wrongdoing due to involuntary guilty pleas made by the defendant under the pressure of litigation. The accompanying Diversion Program provides alternative treatment for misdemeanor offenders, replacing criminal penalties with non-custodial measures such as education and correctional treatment and community service, which is similar to China's community correctional system in terms of the concept of socialized governance[10]. However, due to the lack of uniform legislative regulation, the diversion process in the United States suffers from the problem of fragmentation of application standards between regions, while community correction in China relies on the Community Correction Law to form a clear framework of application conditions and procedures[11].

3.2.2. Germany: a discretionary model of governance under prosecutorial cheapness

The governance of minor crimes in Germany is based on the theory of "prosecutorial cheapness", which gives prosecutors broad discretionary power not to prosecute. According to the German Code of Criminal Procedure, prosecutors can decide whether or not to bring an indictment based on the circumstances of the case, the public interest and other factors, and about 30 per cent of misdemeanor cases are handled through non-prosecution, which is common to China's system of relative non-prosecution in terms of the concept of "not prosecuting minor offenses", but the scope of the prosecutor's discretion in Germany is much broader (e.g., they can make a decision not to prosecute a portion of a misdemeanor case directly without having to report it to a higher level for approval). In addition, the Strafbefehl (Criminal Punishment Order) procedure, as a mechanism for the expeditious determination of misdemeanors, allows prosecutors to apply directly to the court for a written punishment order, omitting the court hearing, which is similar to China's criminal speedy-dictation procedure, both of which are oriented to improving efficiency. However, the procedure lacks a hearing to examine evidence, which may lead to inadequate safeguards for the defendant's right to a defense, and there is a difference in procedural philosophy between this procedure and China's "trial-centered" criminal procedure system.

3.2.3. Japan: an efficient governance model that synergizes prosecutorial hesitation and summary proceedings

The special feature of Japan's misdemeanor governance is the synergistic application of the prosecution hesitation system and the summary procedure. The hesitant prosecution system gives prosecutors the discretion to prosecute or not prosecute misdemeanour cases, and about 40 per cent of misdemeanour cases are filtered through this procedure, which is consistent with the non-prosecution system in China and Germany, but emphasizes more on assessing the possibility of recidivism of the offender in the concrete operation. The summary procedure applies to misdemeanor cases with the possibility of imposing a fine, and the court can make a judgment directly based on written materials, and both of them pursue the speedy handling of cases with the quick-determination procedure in China[12]. However, Japan's summary procedure has been criticized as potentially weakening the defendant's right to confrontation and participation in the process by omitting the trial investigation altogether[13], which contrasts with the design of our speedy trial procedure, which still retains the summary investigation part of the trial.

3.3. Reflection and mirroring

Observed from the dual dimensions of concept and system, China's misdemeanor governance to "balance efficiency and justice, education and correction priority" as the value orientation, and foreign models there are significant differences: First, the conceptual level, our country emphasizes the misdemeanor governance of judicial impartiality and social restoration function, focusing on the non-prosecution, community corrections and other systems to achieve the "combination of punishment and education"[14]; and the United States, Germany and other countries More focus on procedural efficiency, such as plea bargaining to consult the case to end the rapid diversion of cases, criminal punishment order in writing to simplify the process, but may be due to the trial process deflated leading to insufficient protection of the rights of the accused, or due to the excessive concentration of discretionary power triggered by the challenge of judicial injustice. Secondly, at the institutional level, China relies on the Criminal Procedure Law and the Community Corrections Law to build a progressive governance chain of "non-prosecution - diversionary procedures - non-custodial sentences", highlighting the assessment of the subjective malignancy of the offender and the risk of recidivism[15]; while foreign countries rely more on the negotiation between the prosecution and the defense (e.g., the U.S.) or prosecutor's discretion (e.g., Germany and Japan) to achieve case filtering. Such as Germany and Japan) to realize the case filtering, although in the efficiency improvement of the effectiveness of remarkable, but there is a "focus on the speed of conclusion of the case, light on the substantive justice" tendency, for example, the United States plea bargaining may be due to the defendant's ability to litigation differences lead to "innocent plea"[16], the German criminal punishment order procedure may be due to the lack of questioning links to the detriment of the right to participate in the process[17]. From the perspective of practical effects, China's misdemeanor management through standardized procedural design and socialized correctional measures, while guaranteeing judicial uniformity and at the same time improve the success rate of re-socialization of offenders[18], while the foreign model is faced with the problems of inconsistent application of the standards between the regions (e.g., the United States diversion procedure), and the weakness of the power supervision mechanism (e.g., the German prosecutor's discretion), and so on[19]. Special attention should be paid to the fact that the effectiveness of the system of foreign models is closely related to its judicial environment, legal culture, our country must adhere to the "trial-centered" criminal procedure system bottom line, to guard against the erosion of procedural efficiency on the substantive justice, to ensure that misdemeanor governance in the rule of law to achieve a "dynamic balance between the enhancement of efficiency and the protection of the rights of the track".

4. Paths to improvement in the governance of misdemeanors in China

As an important part of the criminal justice system, misdemeanour governance is of key significance in balancing judicial efficiency and fairness and promoting the re-socialization of offenders. For typical misdemeanors such as drunk driving, a full-process governance system can be constructed in the three dimensions of prevention in the front, treatment in the middle and improvement in the aftermath, with the following specific paths:

4.1. Prevention: risk prevention, control and social co-governance

4.1.1. Layered and categorized rule of law advocacy

Relying on the community grid management system, the joint public security and judicial administration departments to carry out "precise" law. For high-risk groups (such as catering workers and freight drivers), immersive education methods such as VR experiences of simulated drunk-driving accidents and live broadcasts of court hearings of typical cases have been used to strengthen the deterrent effect of the law[20]; a course on the quantitative assessment of the harms of drunk-driving has been implemented in schools and enterprises, combining scientific explanations of blood alcohol concentration (BAC) and criminal liability to enhance the depth of the public's awareness of the illegality of drunk-driving. (c) To promote the public's awareness of the illegality of DUI by combining the scientific explanation of BAC and criminal liability.

4.1.2. Socialized risk intervention mechanisms

Establishment of the "employment-psychology-family" intervention network: relying on public employment service platforms, provide unemployed people with "DUI prevention + vocational skills" dual-track training; set up psychological counselling windows in grass-roots governance centers, and implement case management for alcohol-dependent people; intervene in family conflicts triggered by alcoholism through family mediation mechanisms, and reduce DUI causative factors from the source. Reducing Drunk Driving Causes at the Source. With reference to the German model of "judicial referral of addicts", eligible alcohol-addicted drunk drivers can have their criminal proceedings suspended and be forced to undergo medical treatment.

4.1.3. Intelligent and precise prevention and control

The use of big data to analyze the spatial and temporal distribution characteristics of drunk driving, the deployment of intelligent monitoring equipment in food and beverage gathering areas, urban and rural areas and other high incidence areas, to achieve the closed-loop management of the "abnormal stay vehicle warning - suspected drunk driving personnel trajectory tracking - on-site rapid screening". Promote the "alcohol lock" technical defense measures, the second drunk driver mandatory installation of vehicle alcohol ignition interlock system, combined with GPS positioning to achieve dynamic supervision, reduce the risk of recidivism.

4.2. Ex post facto: process optimization and restorative governance

4.2.1. Specialized triage and disposal mechanisms

The establishment of a centralized handling center for misdemeanour cases and the implementation of one-stop processing of drunk-driving cases through "rapid testing, legal advice and plea bargaining". For first-time offenders with a blood alcohol content of less than 120 mg/100 ml and who have not caused any actual damage, quantitative standards of "no prosecution for minor offenses" are being explored, and administrative penalties are being applied in lieu of criminal penalties. With reference to France's experience in setting up misdemeanour courts, specialized collegial panels have been set up in grass-roots courts to carry out "elemental trials" of drunk-driving cases that are subject to the speedy-dictation procedure, with the focus of the trial being on reviewing the voluntariness of the guilty plea and the assessment of social dangerousness.

4.2.2. Restorative justice embedded in the criminal process

Establishing a tripartite mediation mechanism for "victimization-community", introducing a system of first payment from the Road Traffic Accident Social Assistance Fund in drunk-driving cases, and incorporating the performance of the victim's compensation into sentencing considerations. Implementing the "Traffic Safety Public Service Order", which requires drunk drivers to participate in voluntary services such as traffic civility persuasion and drunk-driving publicity, with the length of service and performance serving as an important basis for applying probation or reducing or waiving fines. First-time offenders who complete the service and do not reoffend may apply to have their criminal records sealed, and if they perform well during the sealing period, they will automatically have their prior convictions eliminated upon expiration of the period.

4.2.3. Rules for the precise application of non-custodial sentences

The Sentencing Guidelines for Drunk Driving Cases were formulated, distinguishing the three-dimensional sentencing elements of "alcohol content gradient + consequences of accident + guilty attitude": for those with lower alcohol content (e.g., 80-100mg/100ml), who have not been involved in an accident and who voluntarily accept correctional treatment, priority is given to applying probation and attaching community-based alcohol-abstinence treatment; for those with higher alcohol content (e.g., over 200mg/100ml) or those who have caused minor accidents, the risk of recidivism is assessed before deciding whether or not to apply a prison sentence. For higher alcohol levels (e.g., over 200 mg/100 ml) or minor accidents, a comprehensive assessment of the risk of recidivism will be made to determine whether or not to apply a custodial sentence, so as to avoid a mechanistic decision based on "outcome alone".

4.3. Ex post facto improvements: long-term regulation and institutional iteration

4.3.1. Dynamic tracking and support systems

An "electronic file" has been established for misdemeanour offenders, and community correctional institutions, in conjunction with social organizations, implement classification and management: for alcohol-dependent offenders, links are made to specialized medical institutions to carry out regular urinalysis and psychological interventions; for those who are unemployed as a result of drunken driving, they are included in the list of persons with employment difficulties for whom assistance is provided, and targeted job placement services are offered. A "re-socialization assessment scale" has been introduced, which provides stage-by-stage assessments of behavioural modification, social integration, family relations and other dimensions, with the results serving as a basis for adjusting correctional measures.

4.3.2.  Improving the legal framework for the management of misdemeanors

Promote the revision of the Public Security Administration Punishment Law in conjunction with the Criminal Law, and clarify the demarcation criteria between administrative penalties for drunk driving and criminal offences (e.g., whether or not public safety is endangered as a substantive element), so as to avoid the over-criminalization of minor drunk-driving offences. A special chapter on "Special Procedures for Misdemeanors" has been added to the Criminal Procedure Law, refining the procedural rules and supervision mechanism for non-prosecution discretion, and establishing a dual supervision model of "record review by a higher-level procuratorial organ + third-party expert argumentation".

4.3.3.  Localization of international experience

Drawing on the U.S. "Drunk Driver Education Program" (DUI School) mandatory participation system, the completion of the required hours of alcohol education as a prerequisite for the conviction and sentencing of drunk drivers; reference to Japan's "Traffic Offense Points System", the implementation of driving qualifications of repeated dangerous drivers in a stepwise manner (such as suspension of driving, mandatory retake of the test). Through the judicial exchange mechanism, cooperation has been established with EU countries on the mutual recognition of technical standards for alcohol locks, so as to enhance the synergy of cross-border drunk driving management.

4.3.4.  Refinement of the allocation of discretionary powers

The reasonable kernel of German prosecutorial cheapness can be drawn upon to further clarify the quantitative criteria for non-prosecution discretion within the framework of the Criminal Procedure Law, distinguishing between tiers of misdemeanour circumstances, and avoiding the mechanistic nature of "nondifferentiated" treatment^{. (...)}

4.3.5.  Innovation in procedural streaming mechanisms

With reference to the concept of consultation in the United States plea bargaining and the efficiency orientation of Japan's summary procedures, we are exploring expedited procedures for misdemeanors that are consistent with China's system of "leniency in pleading guilty and accepting penalties", and allowing for a moderately simplified trial and investigation under the premise of safeguarding the defendant's right to a defense;

In short, by constructing a model of misdemeanour governance that "prioritizes prevention, differentiates treatment and socializes supervision", not only can it highlight the modesty of criminal law and the humanistic care of justice, but also realize the transformation of misdemeanour governance from "single punishment" to "systemic governance" through institutional innovation, and provide a sample of judicial practice for the advancement of the modernization of the country's governance system and governance capacity[21].

5.  Conclusion

As an important part of China's criminal justice system, the governance of misdemeanors has made remarkable progress in recent years in terms of coordinated legislative, judicial and social governance. With the introduction of Amendment (XI) to the Criminal Law of the People's Republic of China, the constituent elements of misdemeanor crimes such as dangerous driving and throwing objects from a height have been further clarified[22]. Empirical studies have shown that the implementation of the criminal policy of "fewer arrests, more cautious prosecutions, and more cautious detentions" has reduced the rate of pretrial detention in misdemeanor cases from 53.7% in 2018 to 28.3% in 2022[23]. The application rate of the leniency system for guilty pleas has been maintained at more than 85%, which not only improves the efficiency of the proceedings, but also promotes the transformation of criminal justice from "punishment-based" to "restorative justice". However, the management of misdemeanours is still faced with a triple dilemma: first, in judicial practice, the number of cases of dangerous driving and other crimes has increased by an average of 12 per cent per year, accounting for 34.6 per cent of the total number of criminal cases; second, the consequences of previous convictions have involved 184 occupational restrictions, leading to difficulties in the re-socialization of misdemeanour offenders; and third, there is a phenomenon of "heavy supervision but light corrective treatment" in community corrective services, with less than 20 per cent of the total number of cases covered by psychological corrective services in some areas. These structural contradictions may negate the positive effects of misdemeanor treatment. Future reforms should build a "three-in-one" governance system: at the normative level, reference should be made to the "principle of proportionality" to refine sentencing guidelines; at the institutional level, reference can be made to Germany's Federal Central Registry Act to establish a system of limitation periods for previous convictions; at the practical level, it is recommended that the composite treatment model of "electronic shackles + social services" be promoted. Through the establishment of a system of indicators for evaluating the effectiveness of misdemeanour governance, a benign interaction between judicial justice and social governance will ultimately be realized.