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The Criminal Policy Adjustment In The Society Transformation Times Of Contemporary China

Posted on:2009-09-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:L ZhaoFull Text:PDF
GTID:1116360245464544Subject:Criminal Law
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This paper presents its argument based on the starting point which is from the logic dissertation in the three aspects of social transformation, the criminal policy, and adjustment and tries to answer three propositions: how to understand our times in history scientifically; how to read rationally the criminal policy as it is and define reasonably the criminal policy as it ought to be in the background of the historical times; how to adjust effectively the present criminal policy and choose criminal policy which complies with the international trends and conforms to the Chinese national situation on the basis of reading rationally the criminal policy as it is and defining reasonably the criminal policy as it ought to be. This paper proposes the design of the three-level criminal policy group, and the overall frame of criminal policy is lighting the light and striking the strictness, according to the standard that things change as time flies to decide the propriety on penalty, combining punishment with leniency, the tendency of mitigation of punishment.This paper is divided into seven parts:Pandect: Using the methods of analysis and comparison, this paper attempts to complete the tasks which are: basing in the historical background of social transformation, analyzing the success and failure of the present criminal policy, arguing the single-stage criminal policy adjustment which aims at the main representation of sternly crack down on crime, proposing the criminal policy idea, the noumenon, the proper adjustment which is the effective prescription for solving the contemporary society problem, and on this basis proposing the three-level criminal policy group which is the ought-to-be choice of the criminal policy in the times of the social transformation.Chapter One: the General Survey of the Society Transformation in the Contemporary China. First, it roughly sums up the introduction of the definition of the social transformation, the trend, and prices. It induces the transformation trends, such as from the planning system to the market system, form the traditional agricultural civilization to the modern industry civilization and the ecology civilization; it proposes that the crime phenomenon and the crime problem are the prices which the social transformation must endure with. In the next place, it reviews the order-maintaining viewpoint in the social transformation times, the conflict sticking point and the response for the rule of law. It proposes that in the social transformation times it should replace the striking order-maintaining viewpoint with the mild order-maintaining viewpoint, and solves the problems, such as the serious social disorder, the disorder in the though and culture domain and the weakening of the social control ability, by using the response measures of the rule of law, such as strengthening the responsibility consciousness of the prevention of the nation and society and criminal control, reinforcing the conformity of the system, optimizing the social environment, and strengthening the social control ability. Therefore, it proposes that the adjustment of the criminal policy is the right way. At last, it describes that the influence which the social transformation has on the criminal policy in the macroscopic and microscopic levels desiderates the adjustment of the present criminal policy.Chapter Two: the Interpretation of the Criminal Policy in the Modern Rule of Law Context. First, it induces the 42 kinds of criminal policy definitions among the domestic and foreign scholars, and analyzing the reason for which there are many different meanings in three aspects, preparing further analysis of all the elements in the concept. In the next place, it has a static interpretation for the main body of the criminal policy, object, characteristics, carrier and structure. Concerning the main body, it proposes that the main body of the criminal policy includes the decision-making main body and the executing main body, and the political state and the civil society are both the main body of the criminal policy. In our country, the Communist Party of China is the main body of the criminal policy-making and execution. Concerning object, it includes the perpetrator, the illegal actor, and the anti-society and impermissible behavior actor. It also points out that the category of the criminal policy object tends to the direction of the victim and nearly all natural persons, entering the modern society. Concerning the characteristics, it induces the characteristics such as intentionality, the comprehensive nature and the integrity, the openness and dynamic nature, and criticism. About the carrier, it analyzes the theory of origin plus method and the theory of origin and modus. About the structure, it induces two kinds of classifications of the vertical structure and the lateral structure of the criminal policy. At last, it interprets the methods, purposes, functions and scope. About method, it is penalty in the classicism stage of the criminal policy; it is penalty and all systems which have similar functions in the positivism stage of the criminal policy, such as security measures, suspension of sentence, parole, revitalization of protection system; the methods in the modern criminal policy stage breaks through the limits of the criminal law, and develops into the social policy and the public policy domain. About the purpose, it points out that the classicism stage is punishing the criminals and maintaining the order, and represents the aggressive characteristics; the positivism stage is preventing criminal and maintaining the order, and represents the preventive characteristics; the modern stage has the purpose of the combining criminal policy, i.e. combining punishment, preventing, and controlling; in the present stage, the prevention and controlling the crimes are the direct purposes, and ensuring the liberty and human rights, and protecting the orders and security, realizing the justice and right are the ultimate purposes, which becomes the powerful claim. About the function, it mainly introduces the direction function, the adjustment function, and the intermediary function. About the scope, it resumptively introduces the one-level theory, the two-level theory, the three-level theory and the multi-level theory, and it is thought that the multi-level theory more conforms to the judgment of the real requirements.Chapter Three: the Practical Analysis of the Criminal Policy in the Social Transformation Times. First, it reviews the beginning stage of the criminal policy, the development stage and the prosperous stage. It proposes that the criminal policy theory and practice are in a dynamic developing process. In the next place, it introduces separately the historical evolution of the criminal policy which combines punishment and liberality; it introduces that rational interpretation of the striking-hard criminal policy; the origin of the comprehensive administration of the social public security; reprieving the flooding of the criminal policy though. It proposes advantages and disadvantages of all kinds of the criminal policy. It points out that the above criminal policy could not finish the present social transformation task in our country unilaterally. Finally, from the five aspects, such as the establishment background of the criminal policy of combining punishment with leniency, the basic content, the reason, sentiment, the legal principle basis, the establishing criteria, the basic spirit, the prospect and review, it expatiates systematically the understanding of the criminal policy of combining punishment with leniency. It points out that it is at present the best criminal policy which we could trust and rely on, but it could not complete the social transformation task on its own.Chapter Four: the Ought-to-be Adjustment of the Criminal Policy in the Social Transformation Times. First, it proposes that in the social transformation times, the erroneous idea zone of the criminal policy includes all-mighty of penalty plus severe law which equals to the stability of the society; the retributive penalty plus utilitarianism which equals to the efficient justice; state compulsion plus punishing crime which equals to protect the individual freedom. It proposes that the resolving methods includes the right definition of the relationship between liberty, justice, and order; stressing the social cause; maintaining the order should make the declined utility and the emphasized human nature; realizing the policy should carry out the transfer from the suppression policy model to the response policy model. It emphasizes the idea adjustment is: first, pursuing the modestly restriction, the establishment of mitigation is the concept of the overall development trend of the criminal policy; second, pursuing humanity, the establishment of humanity is the concept of the intrinsic value of the criminal policy; third, pursuing human rights, the establishment of prevention is the core value concept of the punishment and prevent system of the criminal policy. In the next place, it particularly expatriates on the concrete content of adjustment from the six aspects such as the main body, the object, the method, the purpose and the structure. Among them, the main body adjusts the traditional nation-orientation model to both nation and social orientation model; the objects, first is delimiting the crime circle scientifically; second is integrate all the people into the object category as far as possible; about the method, it adjusts the criminal policy method in the sense of the pure criminal laws to the criminal policy method which includes part of the social policy method in the concept of the broaden criminal policy concept; about the purpose, it adjusts from the traditional single punishment, punishment, controlling purpose to the double purpose model of the direct purpose-the ultimate purpose; about the function, it mainly means that it should try best to exert the positive function and elude the negative function scientifically in the process of the constituting and executing the criminal policy process; about structure, first the adjustment from the microcosmic criminal policy structure to the macrocosmic criminal policy structure, second the adjustment in both vertical and lateral aspects for the criminal policy group. At last, in the adjustment of severe criminal policy, it proposes striking sternly the force criminal crime which endangers the social stability severely and etc. In the aspect of reprieving and widening criminal policy adjustment, about the Procedure Law, first, it introduces the resuming justice idea, and establishes the system of criminal conciliation nonprosecution; second, it pursues the penalty mitigation, and establishes the deferment prosecution system; third, it strengthens the litigation efficiency, and explores the plea bargaining system. About the entity law, first, it is the strict limit of the application of the death penalty; second it is careful usage of short-term punishment against freedom; third, it is the application of broadening the criminal fines.Chapter Five: the Overall Structure of the Crime Policy in Our Country in the Social Transitional Times. It proposes the tentative plan of the criminal policy of the criminal law and the rule of law of the criminal policy. It also designs and describes to realizing way and path. It finally proposes that the three dimensional criminal policy aggregated model connotation and its relational limits. The part is the key of the whole paper. The author proposes the overall frame of the criminal policy of lighting the light and striking the strictness, according to the standard that things change as time flies to decide the propriety on penalty, combining punishment with leniency, the tendency of mitigation of punishment. First, it defines the overall criminal policy in social transformational times of our country as mitigation of the criminal policy., i.e. the tendency of mitigation of punishment in the overall frame; next, it defines the basic criminal policy as the Criminal Policy of Combining Punishment with Leniency, i.e. combining punishment with leniency in the overall frame; Finally, the concrete criminal policy's core and primary intention refer to lighting the light and striking the strictness, according to the standard that things change as time flies to decide the propriety on penalty in the overall frame. About three-level criminal policy's relations, proposing the overall criminal activity policy belongs to the single straight line movement, namely the penalty tends unceasingly leniency is the value demand in the civilized normal society. The overall criminal activity policy can not disobey this basic judicial idea in the system design and the institutional arrangements aspects; the basic criminal policy is the double parallel line movement, namely the polarization criminal policy system will coexist for a long time. Its value demand would try to obtain both balanced coordination as far as possible; the concrete criminal policy is the clock pendulum type movement, namely basing on the reality of the society overall situation and the social crime situation, the concrete criminal policy will make the clock pendulum type adjustment between the severe criminal policy and the loose criminal policy. Speaking of some domain or some stage in the crime controlling, it either performs severely, or performs as leniency.Conclusion: The modernization process for the Chinese criminal policy also has a quite long way to go. The ability of our understanding the world and changing the world has a great distance from the requirements of human society's common blessing. We should try best to make our comprehension ability and the exertion technique of criminal policy comes to or gets close to the level in the developed country level.
Keywords/Search Tags:social transformation, the criminal policy, adjustment
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