Crime And Relationship Theory

The purposes of this thesis are as follows: In theory, the author attempts to construct the research pattern of relation-style instead of the one of part-style to improve the development and perfection of the basic theory of crime and punishment and so on; in practice, the author attempts to deeply reveal the content, structure and formation of the principle of suiting punishment to crime through the development and perfection of the basic theory of crime and punishment and so on to provide with train of thought or guidance of the legislative implementation and judicial realization of the principle ,which can make it to play an important role in the retribution and prevention of criminal law to advance the realization of the justice of criminal law.This thesis consists of seven chapters.The first chapter: The establishment of the relationship between crime and punishment. The author proves the desirability of the relationship between crime and punishment through the dispute happening between the principle of suiting punishment to crime and the principle of suiting responsibility and punishment to crime from criminal responsibility: Criminal responsibility is the legal responsibility carried out by punishment because of departing from criminal duties. A behavior's departing from criminal duties is crime, while punishment is the result of crime that is the nature of punishment. As the severest negative one in legal evaluation and as the ideas of the legislators who represents the society, criminal responsibility exists in the legislative phase before criminal norms that embody criminal responsibility, which is carried out in judicial phase through conviction and punishment measurement and execution. Thus, legal responsibility forms a super category to crime and punishment, which consists the content of it, while the relationship between crime and punishment constitutes the substance of criminal responsibility, but the relationship among crime, responsibility and punishment makes criminal responsibility to be empty and destroys the category logic of criminal law. The author analyses "crime and responsibility-structured theory", "responsibility and punishment-structured theory" and "new crime and responsibility- structured theory" to further prove the desirability of the relationship between crime and punishment.The second chapter : The crime and punishment of the relationship between crime and punishment. The author discusses that what the crime and punishment of the relationship ought individually to be .As for the crime, the author answers the following questions: crime is already so or will so; Why personal dangerousness should lie in crime; Personal dangerousness should include the dangerousness of the first offense or not; How personal dangerousness should be measured; How should the relationship between personal dangerousness and subjective evil be; How objective damage, subjective fault and personal dangerousness are integrated to crime. As for the first question, because personal dangerousness is the present condition of the personality which embodies a behavior's contempt of criminal norms or the value protected by criminal law, personal dangerousness should belong to category of already so, what should belong to category of will so is future re-offense itself which will be caused by personal dangerousness? Then, the whole crime that is constituted of objective damage, subjective fault and personal dangerousness should belong also to already so. As for the second one, after the fusion of the new and old criminal theory of the west, retribution and prevention have been regarded as the two purposes of punishment, so crime should give space in itself to personal dangerousness so thatthe exertion of the punishment for special prevention is reasonable. However, personal dangerousness, as one of sides of crime, is not plugged ;nto crime but lies in it originally, which is chosen by one school or abandoned by the other school. As for the second one, because extra punishment exerted to an offender to prevent future offense of others is unfair and does damage to special prevention, and criminal infection should be resolved by other means not by extra punishment, personal dangerousness should be limited to re- offense dangerousness, which should not include first-offended possibility. As for the fourth one, personal dangerousness should be measured within the range of the crime where subjective fault constitutes a mostly important angle and criminal motive constitutes the first role. As for the fifth one, because personal dangerousness forms the embodiment or proof of subjective evil, the former is subordinate to the latter. As for the sixth one, because objective damage, subjective fault and personal dangerousness all embody an offender's contempt of criminal norms or the value protected by criminal law, which all can be linked to the social harmfulness of crime, what objective damage, subjective fault and personal dangerousness are integrated to the whole crime by is the social harmfulness of crime.As for the punishment of the relationship, the author raises that punishment should be the integration of retributive one and preventive one from that the relationship between crime and punishment is the integration of retributive relationship and preventive one and that the relationship is the one between cause and effect and points out that what integrates the inner elements or sides of crime to crime itself is the nature of expropriation of rights and interests of punishment.On the base of having answered that what the crime of the relationship and what the punishment of the relationship should be, the author summarizes the whole formation of the relationship between crime and punishment that the relationship is the integration of the one between objective damage and the punishment of it, the one between subjective fault and the punishment of it and the one between personal dangerousness and the punishment of it.The third chapter: The properties of relationship between crime and punishment. The properties of the relationship discussed by the author include its content property consisting of subjective one and objective one, effective property consisting of compulsory one and tolerant one, existing property consisting of dynamic one and static one, level property consisting of common one and individual one, scope property consisting of well-matched one and bad - matched one and economic property consisting of economical one and uneconomical one.As for its content property, the author proves that subjective property and objective one of crime and punishment become subjective property and objective one of the relationship through the mutual containment and transformation of crime and punishment, and points out that the significance of research on subjective property and objective one of the relationship is that we should not only regard the relationship as objective law which should be respected by us but also try to grasp it in our subjective activity.As for its existing property, the author proves that dynamic one and static one of crime and punishment become dynamic one and static one of the relationship through the mutual containment and transformation of crime and punishment, and points out that the significance of research on dynamic one and static one of the relationship is that as long as the relationship is given fit static one, criminal law can play an important role in protecting freedom and legal interests; As long as the relationship is given proper dynamic one ,criminal law can gain enduring effect in protecting freedom and legal interests.As for its level property, the author proves that common one and individual one of crime and punishment become common one and individual one of the relationship through the mutual containment and transformation of crime and punishment, and points out that the significance of research on common one and individual one of the relationship is that as long as common one of the relationship is strengthened, the regulating role of crime and punishment norms can be strengthened to improve common retributive justice and utilitarian one ; as long as individual one of the relationship is richened, individual retributive justice and utilitarian one and common property of the relationship all can be improved .Meanwhile, the author emphasizes that the content property, existing one and level one of the relationship are decided by the corresponding properties of the social harmfulness of crime rooted in the relationship of social life, and points out the difference between the relationship between crime and punishment and the one of social life where the former one is rooted.From the actual situation of the collocation of crime and punishment, the author discusses the effective property of the relationship and points out that the significance of research on compulsory one and tolerant one of the relationship is that as long as compulsory one of the relationship is strengthened, the authoritativeness of criminal law can be strengthened to improve the actual validation of criminal law which consists of retributive justice and utilitarian one; as long as tolerant one of the relationship is given , the flexibility of criminal law can be given to improve the actual validation either.From the state of the quality of the collocation of crime and punishment, the author discusses the scope property of the relationship, points out that well-matched one is relative and bad - matched one is absolute, and links well-matched one and bad - matched one to kindness and evilness .At last, the author points out that the significance of research on well-matched one and bad - matched one of the relationship is that we shouldn't indulge in the ideal kingdom of the correspondence of crime and punishment, while we should do our best to accomplish the correspondence.From the state of the interest of the collocation of crime and punishment, the author discusses the economic property of the relationship and concludes that economical one and uneconomical one of the relationship are closely related to well-matched one and bad - matched one of it: when the relationship is well-matched, it is uneconomical to an offender because he hasn't gained benefits from the society which is the result of the synchronous increase and decrease of crime and punishment, while it is economical to the society because the society represented by the state has gained mostly in retributive justice and utilitarian one. When the relationship is bad -matched, what happen are as follows: if crime surpasses punishment, the relationship is economical to the offender but uneconomical to the society because the offender has gained benefits from the society, while the society has lost in retributive justice and utilitarian one; if punishment surpasses crime, the relationship is uneconomical to both the society and the offender because the offender has lost eventually, while the society has lost in retributive justice and utilitarian one much more . At last, the author points out that the significance of research on the economic property of the relationship is that as long as well-matched one of the relationship is strengthened; criminal law can gain most in retributive justice and utilitarian one.At last, the author points out that the correspondence and infiltration of the relevant properties of the relationship is helpful for us to gain the comprehensive truth or systematic truth.The fourth chapter : The position of criminal law of principle of suitingpunishment to crime .The author probes into the establishment of the principle, the relationship between the principle of suiting punishment to crime and other legal principles of criminal law as well as some non-legal principles of criminal law.The reasons that we should choose the former one between the principle of suiting punishment to crime and the principle of suiting crime and responsibility to punishment are as follows: Firstly, the relationship between crime and punishment provides mother body for the principle of suiting punishment to crime; secondly, the fusion of the new and old school of criminal law of the west only tells us that punishment should not only suit to the objective damage and subjective fault of crime to realize retributive justice but also suit to an offender's personal dangerousness to achieve utilitarian one ,but the fusion hasn't extracted the principle of suiting crime and responsibility to punishment. What is called the principle of suiting crime and responsibility to punishment is in fact theoretical knocking together of the circle of civil criminal theory. Thirdly, because there is personal dangerousness in the body of crime besides objective damage and subjective fault, and all the three embody an offender's contempt of criminal norms or the value protected by criminal law, the principle of suiting punishment to crime contains the principle of a legally prescribed punishment for a specified crime, which happens in the phase of criminal justice due to the judicial character of individualization of punishment. What the principle of suiting punishment to crime contains are as follows: punishment is caused by crime; crime and punishment have the same quality; crime and punishment have the same quantity. Inspection of the principle of suiting punishment to crime from many angles is helpful for us to grasp the characters of the structure, system and stereoscopic of the principle.Then, the author deeply inspect the position of criminal law of the principle of suiting punishment to crime from the relationship between it and other legal principles of criminal law .the author proves that the principle is a most important side of the principle of a legally prescribed punishment for a specified crime from that Tuantengzhongguang, a famous scholar of criminal science of Japan insisted that the principle should be one of the contents of the principle of a legally prescribed punishment for a specified crime, from that legal-reattributed theory constitutes one of the foundation stones of the principle of a legally prescribed punishment for a specified crime, from that Marx insisted that punishment should be ruled ,limited and legal; the principle originally means the equality between crime and punishment. When the principle is applied to a specific subject of criminal responsibility, it means the equality between the state and an offender, while the principle is applied to all subjects of criminal responsibility; it means the equality before criminal law. Thus, the author concludes that the principle contains the principle of the equality before criminal law, and the former constitutes the basis and safeguards of the latter.The author further inspects the position of criminal law of the principle of suiting punishment to crime from the relation between it and non-legal principles of criminal law. Because both crime and punishment are the integration of subjective property and objective one, which become subjective property and objective one of the relationship through the mutual containment and transformation of crime and punishment, the principle must contain the spirit of the principle of correspondence between subjectivity and objectivity. Meanwhile, the author points out that the principle is the application and embodiment of the principle of correspondence between subjectivity and objectivity, and that the former is the purpose of the latter, while the latter is the means of the former. Relating the principle to the principle of humanitarianism of criminal law, the author analyses the issues of death, severe punishment and light punishment by the principle of suiting punishment to crime andconcludes that as long as a kind of punishment system doesn't go against the principle of suiting punishment to crime, it must tally with the principle of humanitarianism of criminal law because both the principle of suiting punishment to crime and the principle of humanitarianism of criminal law are historic and developing ones . The principle contains the spirit of the principle of humanitarianism of criminal law, and the former constitutes the protective screen of the latter.Having related the principle to the other legal and non -legal principles of criminal law, the author summarizes that the principle is the core one of criminal law as well as the physique of the system of principles of criminal law, which is the soul of the soul of criminal law.The fifth chapter : The value of the principle of suiting punishment to crime. The author probes into the value of the retributive and utilitarian justice of the principle and the value structure of the principle. From Hanmolabi Code and law of the twelve tables and in the light of Kant and Hegel's judgments on the retributive theory of punishment, the author discusses the value of retributive justice of the principle; in the light of the concept of suiting punishment to crime of the Chinese ancient, the one of suiting punishment to crime of the western enlightenment, the one suiting punishment to crime of Beccaria and Betham, the author discusses the utilitarian value of the justice of the principle. On the base of the aforementioned discussion, aiming at the general sense of the civil criminal theory that the justice value and utilitarian one of the principle stand side by side and repel one another, the author argues that when the justice value and utilitarian one of the principle stand side by side and repel one another, the judgment that the latter should be limited by the former can't stand deliberation because the two are matched in strength. In fact, retribution and utility stand side by side and sustain the justice of criminal law together. Thus, the author put forward the concept of utilitarian justice and holds that retribution and utility subordinate to the justice of criminal justice. Therefore, the principle owns the value structure where justice surpasses retribution and utility and where utility is really limited by justice to form utilitarian justice, which can be mostly maximized and the most reasonable.The sixth chapter: The legislative construction of suiting punishment to crime. The author probes into the standard and means of the legislative construction of suiting punishment to crime, the construction in general provisions and specific ones of criminal law and the testament of the construction. In the light of Beccaria's judgment on the rule of crime, Marx's judgment on the nature of crime and Hegel's judgment on the disparity of the quality of the social harmfulness of crime, the author answers the first question of the construction that is what the standard of the construction should be in that the standard of the construction should be the social harmfulness of crime. Meanwhile, the author discusses the two -standarded theory of punishment measurement. According to the theory, the severity of crime and the need of prevention are the two standards of punishment measurement. After pointing out that the issue of the standard of punishment measurement and the one of the standard of the legislative construction of suiting punishment to crime are the same, the author further proves that both the standard of punishment measurement and the standard of the legislative construction of suiting punishment to crime should be the social harmfulness of crime from that the standard should be definite and sole and that personal dangerousness should constitute the quota of the need of specific prevention .after raising the standard of the legislative construction of suiting punishment to crime, under the inspiration of doctor Qiu-xinglong's argument on punishment measurement and in the light of Harger and Molar's judgments on the basis and order of crime and punishment, basing himself upon the disparity of thequality of the social harmfulness of crime, the author advances that the correspondence method of basis and order is the scientific one of the construction of suiting punishment to crime .how the correspondence method of basis and order forms? In the author's opmion, the disparity of the quality of the social harmfulness of crime produces the basis and order of crime that is the rank and sequence of crime, while the basis and order of crime decides the basis and order of punishment that is the rank and sequence of punishment. The correspondence of the basis and order of crime and punishment comes from the basis and order of crime and the basis and order of punishment, which the correspondence method of basis and order stems from. The principle should be applied to criminal legislation first. After that, the author uses the correspondence principle of basis and order to discuss the construction in general provisions and specific ones of criminal law and the testament of it in living examples.The seventh chapter: The judicial realization of suiting punishment to crime. The author discusses the issue of conviction and punishment measurement. Correct conviction is the starting point of the judicial realization of the principle, because correct conviction is the premise of proper punishment measurement. After discussing the implication of correct conviction, the author analyses the two typical mistakes that are disintegrated conviction and reduced one in judicial practice.Although correct conviction leads us to find the proper punishment, it is not proper punishment measurement itself .in the author's opmion, after conviction and before determination of punishment, comprehensive and reasonable evaluation of the social harmfulness of crime is most important to determination of punishment, because the evaluation is related to the realization of specific retributive justice and specific utilitarian justice. Consequently, the author raises the pyramid-styled evaluation mechanism of the social harmfulness of crime and describes the exclusivenesSjthe structure,the popularity, the ethicality, quantitatively and reference of the mechanism in which we can resolve the difficult problem of the evaluation of the social harmfulness of the case where many plots exists side by side. In order to deepen the understanding of the mechanism, the author analyses the two typical mistakes that are result doctrine and repeating evaluation in judicial practice. Because the evaluation of the social harmfulness of crime accompanies punishment measurement and the model of punishment measurement is in itself the model of the evaluation of the social harmfulness of crime, the author goes on to discuss the model of punishment measurement after raising the mechanism. After reviewing the advantages and disadvantages of all kinds of theories of punishment -measured model and "punishment-measured guidance" of America, the author poses the ideal punishment-measured model suitable to our country which must own the three conditions which are feasibility, reference character and specific character which means specific retributive justice and specific utilitarian one. Hence, the author puts forward social harmfulness-classified and punishment range-centrally lined model.