On Mitigation Of Punishment

Mitigation of punishment is the world trend, and to study it, we need to correctly identify its concept, vale, form and rules. Mitigation of punishment means both the legislative penalty system of light punishment and execution reform of adopting light or non-punishment. Its value comprises four aspects: human rights protection function of criminal law, social protection function of criminal law, saving judicial resources and gaining greater penalty efficiency, and rehabilitation and re-socialization of offenders. From evolution perspective, mitigation of punishment experiences five stages: retaliative penalty, deterrent penalty, equivalent penalty, correction penalty and compromise penalty. Its evolution rules includes changes from felonious punishment to detente punishment, its object from the flesh to the soul, its focus from on deprivation or restriction of human rights and community defense to paying attention to the protection of human rights.The thought of mitigation of punishments dated back in history and was expressed by many thinkers and scholars. Enlightenment thinkers, criminal classical school, criminal modern school and new social defense school after the Second World War all carried out discussion about it. Enlightenment thinkers and criminal classical school's thoughts centered on natural law thought, the statutory crime, the principle of proportionality crime, the humanitarian of the penalty and the objectivism of the penalty. Criminal modern school emphasized rectifying offenders and special prevention to educate them rather than to punish them. The New Social Defense Movement after World War II developed mitigation of punishment, and put forward concepts such as expanding non-imprisonment sentence, non-criminalization sentence and so on. Professor Bingsong He brings forward the thought of defense of human rights. He holds that contemporary penalty theory should base on human, not society or justice. The purpose of penalty should be defending human rights, rather than society or justice, which, to some extent, reflects mitigation of punishment.The world trend of lightening punishment rather than enhancing it explains that mitigation of punishment has justifiable foundation, which includes theoretical foundation and reality foundation. The theoretical foundation of mitigation of punishment consists of humanity, modesty, limitation of penalty. The humanity of penalty suggests that when punishment is carried out, the focus should on offenders and victims, so as to help offenders as much as possible obtain self-realization and early return to the society, and to compensate victims and restore social harmony. Its two aspects are moral of penalty and probation of cruelty. Modesty of penalty , whose contents are restriction, broad extension and complementarity characters of punishment, means opposing abusive penalty based on emotional retaliation, and advocates few and cautious use of penalty, restriction of legislation of penalty. Since penalty has its own limitation on its function and some side effects, we take them as limitation of penalty.The reality foundation of mitigation of punishment is constituted by economic foundation, social structure foundation, and cultural foundation. The rule that the more advanced the economy and the higher the living standard, the lighter the penalty, can be proved historically and contemporarily. The social structural foundation for mitigation of penalty is the duel social structure, namely the separation of public social and political state. As a part of culture, penalty develops while being contained within culture. Penalty at a certain period reflects the state culture's development level. That is to say, social culture's progress restrains as well as promotes penalty's trend, viz. from barbarous to civilized, from harsh to detente.From the historical view, penalty also evolves as said above. Capital punishment appeared significant in history, yet it gradually withdrew from the stage of history. Since Beccaria brought forward the thought of abolishing death penalty more than 200 years ago, discussion on this topic has never ceased. Up till now, the abolition viewpoint has prevailed. What's more, the UN and relative organizations strongly urges the worldwide abolition of capital punishment. Accordingly, half countries over the world has abolished death penalty or stopped executing it, and only 83 countries still keeps it. Obviously the trend is to get rid of death penalty. Liberal penalty has also progressed, with lighter punishment, and the way of execution changes from complete imprisonment to semi-open imprisonment or non imprisonment, with prevailing socialized execution. Fines, qualifications sentence, community service and other non-custodial sentence has begun flourishing, with higher frequency of their application.Mitigation of penalty meets with nowadays conception of regarding human rights protection and pursuing humanity penalty. Whether it is feasible is of crucial importance for China. A quick view at present China indicates that currently, the harsh penalty structure highlights and centers on death penalty and liberal penalty, with the death penalty, life imprisonment and imprisonment for more than three years representing a large proportion of the penalty structure, while control sentence, detention, imprisonment within three years, fines and qualification penalty, which are representative of light punishment, holds low status in the penalty structure. Uncoordinated are the death penalty, liberal sentence, the property punishment and qualification penalty, with criminal penalty of a large quantity overall. A research of the People's Intermediate Court of Shandong Province, as well as a grassroots people's courts from 2002 to 2006, observes that the criminal penalty imposed is partial to felonious penalty. The reason behind this phenomenon is traditional felonious penalty tendency, serious public order situation, the "strike-hard scale, light prevention" criminal policy and people's pertinacious thinking of retaliation. Several mainly drawbacks of felonious penalty are destruction of justice concept of the public, reduction of penalty's function and hardly implementation of other prevention methods.It is verified that mitigation of penalty is feasible in China due to China's recognization of inevitability of crimes to a certain degree and China's light-strict penalty policy. However, mitigation of penalty also has to be confined. It can not be divorced from the average values of the age, and national conditions and Chinese people's material and spiritual level, and must not violate the principle of the crime suit.Above all, here comes the crucial question of how to reform China's penalty system to make it keep in line with the worldwide mitigation of penalty trend. The author holds that we should reform the systems and develop concepts. For the concept aspect, we should uphold the conception of human rights protection, especially the human rights of criminals, as well as correctly understand the inevitability of crimes and limitation of penalties; we need to drop the conception of the omnipotence of penalty and felonious punishment tendency. Institutional innovations include: modifying set term of imprisonment, control sentence and execution system—the execution by the community, reducing death penalty, perfecting liberal sentence, criminal detention, property punishment and qualification punishment, restricting life imprisonment, expanding application of non-custodial sentence such as property punishment and qualification sentence, adding community service sentence, and introducing restorative justice.