On The Object Of Criminal Law Adjustment

The domestic and international criminal law educational has disputeon whether the criminal law has the independent adjustment object. Thiskind of standpoint is because criminal law educational did not find outadjustment object, but have to be compelled to accept it. However, if thecriminal law has no independent adjustment object, it means that what isthe adjustment scope of the criminal law, which behaviors should affirmto be crime would not be controlled completely. All will be considered bythe judicatory to arbitrary judgment. But, the penalties, which can deprivethe citizen basic human right, have no standard to tell us how to use thepenalty. This is a terrible affair! In modern society, guaranteeing basichuman rights and limiting the lawgiver and judicatory's power isimportant. So insisting forwardly the criminal law has no independentadjustment object is a wrong conclusion and can't be accept by all means.Therefore, this article concentrates on the adjustment object in thecriminal law, wants to find out a standard to give the lawgiver and thejudicatory to make sure whether to use penalty or not, in order toguarantee human rights, expand social justice. This is just a target for realrule of law social.The article is divided into two parts. The preceding part is toestablish the adjustment object of the criminal law. This part includespreface and three chapters.The preface aims that the domestic and international criminal laweducational has dispute on whether the criminal law has the independentadjustment object. Now, the criminal law educational always believe thatcriminal law has no the independent adjustment object. We think ifcriminal law has no the independent adjustment object, it will bring thecriminal law educational the disaster results. One will cause criminal lawindependent negation. Two will cause lawgiver tyranny. So, we believethe criminal law must have the independent adjustment object.Chapter one is explaining the current overviews about theadjustment object of the criminal law. The writer evaluates theseoverviews and believes the current overviews about the adjustment objectof the criminal law all can't explain the adjustment object of the criminallaw. So we have to look for the new path.Chapter two is to explain establishment of the adjustment object ofthe criminal law——human rights. The article thinks that we look for the adjustment object of the criminal law; we must look for the characteristicof the criminal law. Modern society's core is to guardant human rights,the criminal law also should protect personal basic human rights.Therefore, we need to analyze human rights first.Human rights are a basic right to be a person. So, what is theperson's characteristic? This in practice is to inquiry into the humannature problem. The article evaluates standpoints of human nature first.The article think that the human nature has two characteristics: one is thata person have the demands with unsatisfying; Two is that a person satisfythe demands must ask for help from the society and get social toleranceor approbations. So, protecting the human society exist with the basicorder become an inevitable road that mankind have to choose.Since the human nature requests we must ask for help from thesociety and get the social tolerance or approve to satisfy own demands, so,human rights must be understudied from the human nature. Human rights,is an equal power first, and a right that as a person can possess. Then,human rights must moderate with current society mutually, human rightsis that a kind of right that current society may guarantee each member topossess equally. The third, protecting the social basic order is the mostinitial human rights current society. Therefore, we will get a conclusion:the criminal law should protect the social basic order. This is currentinitial human right. Then, the criminal law should protect social basichuman rights of each member, including the criminal, victim and othershuman rights, not give the protection to a handful of criminal's humanrights only, the criminal law is a "big charter of all the citizen".Chapter three is to establish adjustment object of the criminal law.This article thinks that the criminal law different from the other laws isthe sanctions means first. The sanctions method——penalty of thecriminal law with deprival criminal basic human rights such as freedom,property, political right and life etc. these rights is a normal citizendepending on to maintain basic right in society.Knowing to all, the criminal law is to protect each person's humanrights. But the penalty deprives criminal basic human rights. Why? Weanalysis that this is because of the criminal offence bring a serious result,the criminal offence not only infringed upon human rights of the victim,more important, the criminal offence resulted in the important threat tobasic human rights of the other citizens, will cause the national lawsystem encountering the breakage, the social normal order can't support. Therefore, the adjustment object of the criminal law is the relation of thecriminal's personal basic human rights with national law systemguaranteeing basic human rights in citizens.Since the adjustment object of the criminal law is a relation of thecriminal's personal basic human rights with national law systemguaranteeing basic human rights in citizens. So, how to judge a behaviorbreaking national law system? The writer thinks judgment from host andguest view. From objective to see, breaking the national law systembehavior is a behavior that other law with guaranteeing basic humanrights can't adjust effectively. From subjective to see, breaking thenational law system behavior oneself appears the behavior with hostility,disregard, ignore the subjective attitude to the extremity of basic humanrights.Then we discuss the descending article. The descending article isdiscussing the influence establishment the adjustment object of thecriminal law. The descending article is divided into totally three chapters.The writer thinks, after establishment the adjustment object of thecriminal law, it will produce the enormous influence on the criminal law:The first, establishing the adjustment object of the criminal law will makethe independent of the criminal law perfectly deserved, becoming anindependent law section theoretically and formally. The second,establishment the adjustment object of the criminal law can limit thelawgiver power. The third, t establishment the adjustment object of thecriminal law can guide the judicatory to think how to comprehend the lawand limit judicial of tyranny. The fourth establishment the adjustmentobject of the criminal law will make the foundation of the criminal lawtheories field, will regard the adjustment object of the criminal law asclues to think whole criminal law: In the criminal law introduction part, itwill with the adjustment object of the criminal law set up the basicprinciple in criminal law. In the crime part, it will with the adjustmentobject of the criminal law set up crime concept and criminal innate. In thepenalty part, it will with the adjustment object of the criminal law set up aright penalty purpose.Chapter one is after establishing the adjustment object of thecriminal law, it will make criminal law part of basic principles occurrencechanges, and the necessity principle according to establishing theadjustment object of the criminal law should become the basic principleof the criminal law. The necessity principle of criminal law is to point that the penaltyused to criminal only to for the sake of protection more most people. Itincludes in a specific way below two basic contents: The first, ifcriminal's behavior is not an urgent arriving to save socially continuously,making more basic human rights of the most people suffer the invasion,can't be as a criminal and apply the penalty which depriving its basichuman rights. The second, the way of depriving the criminal's humanrights is only adopted to it's injuring minimum and at the same time canprotect most person's basic human rights.The article also proceed the analysis function of the necessityprinciple of criminal law, thinking that the function of the necessityprinciple of criminal law includes two aspects in a specific way: The first,limiting the legislative power, preventing the lawgiving tyranny; Thesecond, limiting the judicature, preventing the judicatory by a stretch ofauthority. Finally, we think that the necessity principle of criminal lawshould become the basic principle of the criminal law.Chapter two is after establishing the adjustment object of thecriminal law, it will with the adjustment object of the criminal law set upcrime concept and criminal innate.This article proceeds to every kind of standpoint to expatiate to thecurrent criminal concept first and give the critique, think the criminalconcept, substantial criminal concept, comprehensive criminal concept ofthe current form aren't correct because of not connection with theadjustment object of the criminal law. The writer thinks, only find theadjustment object of the criminal law theories, and connecting theadjustment object theories of the criminal law, it will set up crime conceptand criminal innate correctly.Then the article analyses the criminal concept of our country, wethink the social harm will be understood according to the adjustmentobject of the criminal law afresh. The social harm will be understood tobreaking the national law system. So, the criminal innate is the socialharm and the crime is a behavior breaking the national law system.Chapter three is after establishing the adjustment object of thecriminal law, it will with the adjustment object of the criminal law set upcorrect penalty purpose.The article proceeds to every kind of standpoint of the currentpenalty purpose first and evaluates, thinks the standpoint of retributiontheory, utility theory of the current penalty purpose with the compromised theory aren't correct because of not to connect the adjustment object ofthe criminal law. The writer thinks, only find the adjustment object of thecriminal law theories, and connecting the adjustment object theories ofthe criminal law, it will set up penalty purpose correctly.Then the article proceeds to the purpose of the penalty according tothe adjustment object theories of the criminal law in a specific way ofanalysis. The adjustment object of criminal law theories tells us: Thecriminal law is protective to basic human rights in each citizen, therefore,the purpose of the penalty also should protect basic human rights of eachcitizen including the criminal, the victims and others. Reducing the crimeis the best ways. How to reduce the crime? The writer analyzes the typesof the different and social member to use the deal of what kind of penaltycan reduce crime. According to the analysis, the writer gets a conclusion:For the sake of biggest degree protection of basic human rights andreducing crime, the penalty deal can be criminal cost just above criminalincome enough. When the penalty deal can be criminal cost just abovecriminal income enough, it will suppress the latent criminal not to commitcrime, it will make criminal accept the penalty calmly, it will also makevictim fell that the penalty deal is fair.Finally, the writer thinks, realizing the purpose——protection ofthe basic human rights in each citizen, the basis of penalty deal can becriminal cost just above criminal income enough. Because this kind oftheoretical core is to regard criminal prevention as the center, thepreventive object includes the criminal, victim, social other people. Thiskind of theoretical method is typical general prevention doctrine.Therefore, the writer thinks that own standpoint can also be called as"prevention generally" theory.