Introspection And Reconstruction Of Purposes Of Punishment

The entire dissertation includes three parts: introduction, body and conclusion.The part of introduction clarifies the theoretical and practical significance of the research on purposes of punishment, the present situation and limitation of the research on purposes of punishment, and the approach and clue of this dissertation.The body includes three parts: introspection of traditional theories of purposes of punishment, reconstruction of theory of purposes of punishment and the new system of purposes of punishment on the approach of rule of law.At the beginning, the part of introspection begins with the introduction of traditional theories of purposes of punishment and criticizes of their logical defects, and tries to find a new approach of the research on the basis of inquiry on the deep reasons of those defects. Traditional theories of purposes of punishment shaped a relative concrete theoretical pattern, that is, the traditional theories only concerns about the two elements: retribution and prevention, and all the traditional theories spread around the two elements. However, no matter retribution or prevention, there is long-ignored inner contradiction and conflict; for retribution, it is between legal retribution and moral retribution, and for prevention, it is between general prevention and individual prevention. Moreover there is more tight logical connection between legal retribution and general prevention than between general prevention and individual prevention. Those all indicate that there are logical problems in traditional system of theories of purposes of punishment and need to be reconstructed under new approach. And in consideration of the deep reasons of respective inner conflicts of retribution and prevention, we can see those are caused by the neglecting of background of rule of law. So the approach of rule of law is our threshold of research and construction of new theory of purposes of punishment.Next, the part of reconstruction of purposes of punishment considers the concept and features of purposes of punishment from the approach of the contemporary background of rule of law, and reconstructs the system of purposes of punishment in full consideration of the two features of rule of law. At first, in concern of the concept of purposes of punishment, it can be divided into historical broad sense and modern narrow sense. The one that reflects the influence of rule of law is the narrow one. Under the influence of rule of law, the purposes of punishment have three basic features: Hierarchical, subjective and modern, and these three features guarantee the scientific feature of the construction of system of purposes of punishment.In the second place, on the basis of distinction between criminal law and rule of law in criminality, I inspect the contents of rule of law and its influence on the structure of purposes of punishment. Rule of law includes two features, formal and substantial, that influence purposes of punishment. From the era before rule of law to the era of rule of law, purposes of punishment have taken great changes. Under the influence of formal rule of law, to keep the order of law is the most important purpose of punishment, and punishment can not get directly to other purpose of value by ignoring or ruining this purpose. Under the influence of substantial rule of law, a serial of modern substantial values in accordance with rule of law become the valuable objectives of purposes of law.Thirdly, since rule of law has so great decisive influence on purposes of punishment, we should reconstruct system of purposes of punishment in consideration of the influence of rule of law. From the influence of formal rule of law, the formal rule of law's law first makes legal retribution occupies the predominant position in the system of retribution and is independent from and prior to moral retribution. At the same time, logic of rule of law is accorded with general prevention in system of prevention and that makes general prevention fully realized under rule of law. So legal retribution and general prevention both conforms to logic of rule of law and the purpose to preserve the order of law and safeguard the legal norms. They can be regarded as the law-safeguarding purpose.There is a higher purpose of value-safeguarding beyond the purpose of safeguarding law. The contents of value-safeguarding purpose are affected and decided by the value judgment of substantial rule of law, which makes the purpose of safeguarding value in accordance with the purpose of safeguarding law. The purposes of law-safeguarding and value-safeguarding both are purposes of punishment, and have a relationship of method and purpose. The purpose of safeguarding law is realized for the purpose of safeguarding value, so the law-safeguarding purpose is the necessary method for the realization of the purpose of safeguarding value. The realization of the purpose of safeguarding value can not avoid or destroy the purpose of safeguarding law, which is decided by rule of law.On the one hand, rule of law is the way of social regulation of our times, and decides the status of the law-safeguarding purpose. On the other hand, however, rule of law has some weakness, which is originated from the limitations of law and decides the limitations of law-safeguarding purpose of punishment. It is on the basis of criticizes of limitations of criminal law, that thinkers of new school developed individualism of punishment and society-safeguarding purpose that includes the contents of social safeguarding and individual prevention. The society-safeguarding purpose recovers the defects of law-safeguarding purpose and becomes a kind of supplementary purpose of punishment. So in conclusion, the system of purposes of punishment becomes new contents that include the main part of law-safeguarding and value-safeguarding purposes and supplementary part of society-safeguarding purposes.At the last part of the body, the reconstructed system of purposes of punishment is fully developed, which is the main part of the dissertation.Firstly, as the basis of the system, law-safeguarding purpose means that punishment should preserve the legal order and norms. The "law" as the object of safeguarding law includes three aspects: norms of criminal law, legal norms and legal order. And the "safeguard" includes two meanings: resuming the power of legal norms that has been destroyed and preventing the power of legal norms that has not been destroyed from being destroyed. As for the contents, safeguarding law includes legal retribution and general prevention. On the one hand, legal retribution has two features, that is, the preservation of punishment for power of law through retribution to the criminals, and causal and equivalent relationships between crimes and punishment, as the function of retribution, both are decided by law. The realization of legal retribution depends on law-deciding equivalence between crimes and punishment. On the other hand, features of general prevention are preservation legal power through deterrence of potential crimes in the future and dual prevention of fundamental passive prevention as well as positive prevention. And the realization of general prevention depends on deterrence by legal notions and inspiration of law-abiding. Furthermore, as the components of legal safeguarding, legal retribution and general prevention is possible and necessary to be integrated. Considering the method of realization, safeguarding law is realized by the functions of legal retribution and general prevention. To satisfy the function of equivalence of crimes and punishment of legal retribution and dual prevention function of general prevention, a lot of institutions should be improved in the practice of criminal legislation and jurisdiction.Secondly, the objects of safeguarding value include subjective idea of values and objective substance of values. And the dispute between the theories of legal interest and legal norms suggests the dispute whether values include idea of values or substance of values. And I think idea and substance of values are not confronted with each other and can supply each other. Idea of values protected by punishment is different with normal multi-idea of the society, and has four special features, that is, state-will, lowest moral level, culture distinction and generalization. Substance of values protected by punishment, in generally speak, is mainly legal interests, through which punishment realize the protection of other kinds of substance of values. However, legal interests can not represent all the substance of values, and other kinds of substance of values include human rights, order, and justice and so on.Thirdly, to retrieve the limitation of law-safeguarding purposes, we need apply the supplementary society-safeguarding purpose. Society-safeguarding purpose means individual prevention over the rigidity of law. The basis of safeguarding society lies in the theory of safeguarding society, and has contents of individual prevention. That decides that the purpose of safeguarding society suggests the individualized logic of punishment and adopts punishment of prison of indefinite period after judgment, as well as individual education and correction, which has conflict with abstract logic of law-safeguarding purpose. For resolving the conflict, new society-safeguarding theory gives us some experience. It becomes the basic way of supplementary society-safeguarding purpose to classify the personal dangerous characters and correspond to all kinds of punishment. The classification method can accommodate to generalization and abstraction of punishment as safeguarding law demands on one hand, and on the other hand keep some character of individualization of punishment, which means individual prevention to some extent. To implement the classification into criminal legislation, jurisdiction and execution, some institutions should be improved. The conclusion part expresses the meaning of method of criminal law research of the dissertation. Traditional theories of purposes of punishment ignore the background of rule of law because that traditional research has closed area and technical method of research caused by division of branch of research. The research of purposes of punishment belongs to the area of new theoretical research of criminal law. The consideration of background of rule of law in the research demand the combination of research of criminal law with basic research of legal theory, such as jurisprudence and constitutionalism and opening of the area and method of research of criminal law.