Research On Basic Ideas Of Restorative Justice

As a new trial model of criminal justice, restorative justice originated from the west in the 1970's. It has become the center of study and practice in the west since its appearance. The reason that restorative justice is so populous in the west is closely related to its new and unique ideas.However, most of the study on restorative justice in the west merely focuses on the aspect of practice. Although the ideas and rationale of restorative justice have been referred to by some people, they are too decentralized and not systematic. Since the beginning of this century, the study of restorative justice has started in our country and become the hot subject. But, a systematic research on its basic ideas has never been posed. Thus in this sense, it's a good attempt that having a systematic research on the basic ideas of restorative justice in this paper.The basic ideas of restorative justice are established on the basis of its unique view of justice, crime and penalty. Through taking the discussion of the basic theory core of the view of justice, crime and penalty in the different history types in our human society and the comparison of the view of justice, crime and penalty in the two different judicial views of the conventional criminal justice (including retributive justice and utilitarian justice) and the restorative justice, this article analyzes the pros and cons of the view of justice, crime and penalty under the view of two justices from the two aspects of ideal and reality. This thus lays a necessary theory foundation for the practice of the basic ideas of restorative justice in present criminal justice environment and for the fully expounding of the contents of the basic ideas of restorative justice.Except the introduction and conclusion, there are five chapters in this article: the first chapter is about the definition of restorative justice; the second chapter focuses on the relationship of restorative justice and the view of justice; the third chapter centers on the relationship of restorative justice and the view of crime; the fourth chapter concentrates on restorative justice and the view of penalty and the last chapter is about the influence of the basic ideas of restorative justice to our country's criminal ideas.In the part of introduction, the thesis mainly states the following four questions: first, the origin of its title; second, its train of thought; third, research approach; and fourth, the definition of the key words. The reason that this paper makes such an explanation is that on one hand revealing the important theory value and the practice significance of the research of the basic ideas of restorative justice and on the other hand making a basic pre-account on some principal concepts of restorative justice in order to facilitate the writing and unification of the paper.The first chapter is about the definition of the basic ideas of restorative justice. It mainly includes the following contents. First, it has made a brief summary on restorative justice from the two aspects of its basic theory and foreign practice. The fundamental theories of restorative justice mainly includes the meaning, the characteristic, the value, the function, the responsibility form, the object, the operation pattern as well as the goal and so on. On the foreign practice, the author has observed the common law countries represented by the UK, the USA, Australia and New Zealand and the civil law countries represented by Germany, French, Japan and Russia. It has laid a premise knowledge foundation for the definition of restorative justice through the introduction of the theory and practice of restorative justice. The second is the contents of the basic ideas of restorative justice. Through analyzing and inducing the opinions of the scholars home and abroad and combining the practice, the paper generalizes the basic ideas of restorative justice as follows"taking restoration as the core aim; encouraging reconciliation and intermediation; taking the victim's interest as a guide; and initiating community justice."Also it has made an explanation on these four aspects.The second chapter focuses on the restorative justice and the view of justice. Justice is the eternal topic and aim of our human society. The view of justice is not only manifested in the traditional criminal justice, but also manifested in restorative justice. The view of justice in traditional criminal justice mainly display as retributive justice and restitution justice. Retributive justice appeared quite a long time ago. It came into being almost at the same time with that of human being. Because of its tallying with human's plain retributive justice emotion, the view of justice still has formidable vitality up to now. The time that utilitarian justice came into existence was quite later. The main goal of utilitarian justice is to safeguard the society, thus it is a social justice view. The view of justice in restorative justice is mainly manifested as restorative justice, which in essence is a kind of balanced justice. It not only refers to the individual but also refers to the collective. For the individual, it is not only the victim's justice but also the offender's. For the collective, it represents directly the community's justice and indirectly the country's justice. In view of the harmfulness of retributive justice and the unilateralism of utilitarian justice and moreover the non-harmfulness and equilibrium of restorative justice, and under the significant background of democracy, ruling by law, human right and so on, its our ideal goal to replace the retributive justice and utilitarian justice with restorative justice. But in view of the fact that the restorative justice is still imperfect in our modern background and the retributive justice and utilitarian justice have the function of satisfying the need of the public's emotion of retribution and defense society, though a little disappointing, to keep a moderate balance between retributive justice and utilitarian justice and restorative justice.The third chapter centers on the restorative justice and the view of crime. The reason that the ideas of restorative justice are different from the traditional criminal justice ideas is that they have their unique view of crime. The core of crime is the view of the crime essence. Although the view of the crime essence is different in different societies, it is regarded as the violation of benefits of the state and the society. The view of crime essence in restorative justice is that one person harms another in the community.The views of crime in traditional criminal justice and in restorative justice both have some advantages and some defects. From the aspect of human right protection, the view of crime of restorative justice is better than that of traditional criminal justice, for which we should advocate the view of crime of restorative justice in the limited fields. The fourth chapter is about the restorative justice and the view of penalty. Generally speaking, the view of penalty is referred to the view of the aim of penalty. The traditional view of penalty mainly includes retribution theory, aim theory and penalty integration theory. Though the retribution theory, aim theory, and penalty integration theory have their own rationality in their own historical aspects, there are still quite a lot disadvantages. Retribution theory is the view of penalty of restorative justice. Its aim is not at penalty, thus it is a new view of penalty. For the realization of justice and social defense, retribution theory has its unique advantages that traditional criminal justice can not compare with. It can not only correct the victim, but also plays a significant role for the offender and the community. In view of the fact that retribution theory and aim theory still have their rationality and restorative theory is not perfect as well as restorative theory and retribution theory and aim theory still has something in common, thus the gradual practice of restorative theory is the necessary way to overcome the defects of the traditional penalty view.The fifth chapter is about the influence of the basic ideas of restorative justice over our country's criminal justice ideas. The aim to inquiry the basic ideas of restorative justice is to provide beneficial suggestions to our country's construction of criminal justice. Though restorative justice originated from the west, its ideas have something in common with our country's traditional legal culture. Therefore, under the global background of criminal justice pursing harmony and human right, the basic ideas of restorative justice provide a possible way to the reform of our country's criminal justice from following three aspects: First, influences on our view on criminal policy. Starting from the possible way of non-criminalization and community justice, the utilitarian/instrumental criminal policy view in our country may have been changed to the criminal policy view of aim model. Second, influences on our view on criminal legislation. At present, the current situation of our criminal legislation is not so reasonable. The thought of severe penalty is quite apparent in the legislation. The protection of the criminal's human right and the substantial prescription on the protection to the victim's human right is not enough. Thus, it is of vital importance to realize the"people oriented"criminal view of legislation on the basis of the concrete way of constructing a more fair legal value model. Third, influences on our view on criminal justice. The present situation of the view on criminal justice in our country is mainly embodied in the view of penalty leading by the severe penalty thought and centering by the view of state prosecution. In the domain of the basic ideas of restorative justice, changing from the view of state prosecution to that of restorative justice and changing from the criminal justice view of severe penalty to that of moderate penalty is the direction to which the criminal justice view in our country should change.In the conclusion part, combing with the construction of a harmony society in our country, the paper has stated the relationship between the basic ideas of restorative justice and our country's construction of a harmony society.