Penalty Of Justice

Through analyzing and studying current punishment theory and punishment practice, the author discovers that present punishment theory overwhelming Chinese criminal law academia is mainly introduction and explanation of western punishment theory, and in the process of introduction and explanation, for the reasons of lacking in documents,obstacle of foreign languages and different minds, the scholars usually could not correctly understand and explain the western punishment theory. The author wants to revise misunderstanding and wrong explanation of the western punishment theory through consulting many relative documents and pondering based on these documents.With the vicissitude of age and development of civilization, more and more people begin to realize that punishment is merely one part of criminal policy. One could get a complete new idea about punishment if he breaks the bondage of traditional three boundaries on crime and punishment, and studies punishment in a broader view of criminal policy.The essential of punishment comprises three issues, why punish,what is punishment and how to punish.The theories about the warrant of punishment of the western criminal law scholars nowadays and in ancient times consist retributivism,instrumentalism and mixed theory. Retributivism studies punishment from the essence of punishment and conceives retribution the aim of punishment, at the same time punishment the retribution of crime. Instrumentalism studies punishment from the angle of outcome, and reckons the aims of penalty preventing and lessening crime, thereinto utilitarianism deems punishment realizing its aim of prevention crime, including general prevention and special prevention, grounded on comparison of misery and happiness of people; Reductivism deems punishment reaches its aim of lessening crime through rebuilding and civilizing the criminals.There is uncompromising conflict in retributivism and instrumentalism for the point of cut-in and angle of them are different. mixed theory seems to be the hybrid of the former two theories, however it is far from the result of simple combination of the two. From the point of methodology, synthesized theory is the development of retributivism and instrumentalism, therefore, mixed theory could neither be ascribed to retributivism nor instrumentalism. The author believes, from the angle of methodology, the warrant of punishment should be studied from both the essence and result of punishment. It is a great advancement for mixed theory to reach the conclusion that warrant of punishment is to prevent crime on the basis of retributivism with a method that considers both essence and result of punishment. Still mixed theory is born defective as it could never demonstrably show the critical point of retribution and prevention, that's to say, many mixed theories untread to retributivism or instrumentalism.Retributivism ,instrumentalism or mixed theory are all trying to find the warrant of penalty, from this facet, there is no essential differences between them.Based on former argumentation, the author studies punishment from criminal policy and finds that the warrant of punishment is the target of criminal policy which punishment relies on. The differences between criminal policies ,punishments and thetargets of criminal policies determine the complexity of warrant of punishment.Based on documents about the origin and transformation of punishment, the author researches the essential,function,aim of punishment, and finds that the essential of punishment is what inherited in punishment and determines the character,content and development of punishment. The essential of punishment is the agony brought by punishment that presents as limitation or deprivation of various rights of the criminal. Obviously the essential of punishment is different from the warrant,aim or function of punishment. The agony brought by punishment is differently comprehended in different ages or by different people, however, punishment could never be itself when the agony bro...