Study Of Some Basic Criminal Problems In The Range Of Constitutionalism

It is necessary to study criminal problems in the range of constitute- onalism,as well as feasible.This theoretical research is still weak in Chi- na,so it is just a key issue to build an constitutionalism-accorded-with criminal law system.Penal power,namely state penal power in a certain sovereign state, refers to the power that the nation delivers certain punishments, commonly penalty to citizens to achieve his own will.Constitutionalism is the status that constitution realized and the course in which constitution realized. In this course,on the one hand, standardized,limited power has come into being and been exercised,on the other hand,citizen'rights have been effectively guaranteed and developed.The fundamentals of constitutionalism are making a premise of good constitutionalism,utilizing non-violent means such as negotiation and compromise,distributing and constructing the frame of right and power to achieve natural balance between right and power.Penal power should keep to the fundamental of constitutionalism either.Criminal cognition is the wholly attitude to fundamental points of view of criminal law,such as the value of criminal law,the function of criminal law,the purpose of criminal law,the tasks of criminal law,the fundamental principles of criminal law, etc.Constitutional criminal cognition is the criminal cognition ought to be conceived in the range of constitutionalism,also cnstitutional criminal cognition is the anticipated standpoint and basic attitude to crime and culprits settled by cnstitution, contrasted to non-constitutional criminal cognition.Non-constitutional criminal cognition usually employs a"weapon"trope and intends emphasizing the force of penal power. But it can not answer the following three questions:whose weapon, how to use the weapon,the weapon applied to whom?For its lack of logics and formal rationality,the non-constitutional criminal cognition can't satisfied the citizen'security requirements, and likely confuse crime and culprit,penalty and excruciation,dissimilation.So it make people alienated and dissimilated.Early criminal cognition is based on social contract,it also regards criminal law as contract, I call it contract criminal cognition for short. Contract criminal cognition is advanced compared to non-constitutional criminal cognition.It describes how the penal force come into being,claims the penal force should be confined,and accelerats some values.Since western countries have covenant tradition,belief in natural law,powerful civil society,it is inevitably that contract criminal cognition prospered in western countries.Contract criminal cognition has bugs.First,it puts focus on the abuse of penal power,ignores its necessary results of survival and virtue.Second,the static thingking mode overrats legislation,underrate justice.Third,the closed thinking mode omits the protection of the victim.Forth,the"contract"can't explain all phenomena while committing a crime.Fifth,the right to interpret the meaning of "human", "trespass"blongs to the nation,thus make the contract seems like overbearing articles.Contemporary constitutional criminal cognition calls for the penal power is restricted,as well as active.The criminal law should respond the risk of crime,satisfy the citizen'security requirements,minimize the risk of its own simultaneouly.That is,to create"the safest criminal law".Corresponding to the three criminal cognitions,three modes of penal power circulating have been put forward.First,crime control mode which is corresponding to non-constitutional criminal cognition.It taks order maintenance as a single purpose by means of interior restrict while inquisitorial procedure is mainly adopted.The power focus is administrative.Second,due process model which is corresponding to contract criminal cognition.It take order maintenance and human rights protection as purpose by means of taking power separated and balanced while adversary procedure is mainly adopted.The power focus is legition.Third,safe mode which is corresponding to "the safest criminal law"criminal cognition.It takes safe security as purpose.Two means of power restrain have been utilized: 1)separate the power and keep them balanced,2)fundamental rights stipulated in constitution combined with constitutional review.Adversary procedure is compatible with other out-of-lawsuit means.In order to achieve the gole of human protection and restrain penal power,replaced crime control mode for safe mode is inevitable.The principle of statutory crime and penalty is extremely close to constitutionalism.The idea of constitutionalism determines the idea of the principle of statutory crime and penalty.The structure of constitutionalism determines the narrative means of the principle of statutory crime and penalty.The practice of constitutionalism determines the realization of the principle of statutory crime and penalty.We can see it in the development course of the principle of statutory crime and penalty.They usually present in the same code,a positive correlation between them can be observed.Good environment can boost mutual promotion.Thus constitutionalism should be strictly abided if the principle of statutory crime and penalty would realize its anticipated function.The principle of statutory crime and penalty is brought forward by Feuerbach who condensed his all opinions of criminal problems,such as purpose of Penalty,function of criminal law,that is,based on early constitutionalism and contract criminal cognition.This principle of statutory crime and penalty had misapprehend judicial logos and get into the superstition of legislative logos. In safe mode,the principle of statutory crime and penalty bears the function of safeguard. In the process of taking effective measures against the globalization of crime,risks has been produced:outside-system risk is from the misstep of nation,in-system risk is from the legislative technique,judicial technique,human factor which can't be dispeled from criminal law.The principle of statutory crime and penalty takes the responsibility of transfer the risks which wandering around defendants to the nation,accordingly safe is guaranteed.Criminal law and the constitution should be coordinated,thus there should be no conflict between them.However,conflicts between criminal law and the constitution is not a rare disease.Due to different stability of constitution and criminal law,amendmention procedures of constitution is relatively more stringent than criminal law's amendmention procedures.In addition,the constitution provides civil rights while criminal law provides specific behavior mode for citizens,hereby conflicts between criminal law and constitution are inescapable.It is necessary to be cautious in conflicts between criminal law and the constitution.A variety of ways could be availed to resolve the contradictions.First of all,as a measure of interest,interpretation of criminal law should abide to constitution.Constitution conformation principle should be adhere to the process of interpretation.In the next place,criminal law interpretation should take the highest standards of constitutional if there are two or more explanations provided.If one of the two interpretations consider that the clause is valid and constitutional,the other explanation could lead to the criminal law invalid and unconstitutional,theformer interpretation should be adopted.That is,when there is a suspicious criminal law clause,we should presume the constitutionality of the criminal code as much as possible,only if it was seen clearly that it is unconstitutional—that is the principle of constitutional presumption.Which is the inevitable requirement of judicial self-restraint,democracy and the separation of powers theory's in order to guarantee the criminal law's stability.If the criminal law clause is so unconstitutional that any reasonable person could seen quite obviously without any suspect,the presumption of constitutionality was overthrown and the criminal law would be judged unconstitutional.Standard of judicial review is a very important question.Fundamental human rights must be put superior to any other human rights protection.Accordingly disparate standards should be established in order to integrate dislocation of constitutional order and in order to relief the suffering of trampled human rights."Patently unreasonable"judgement depends on macro-social environment including national policies and individuals'value judgement.Constitutional review can be divided into three types: judicial review model represented by the USA,constitutional court review model represented by Germany,highest organ of state power review model represented by socialist state. China belongs to highest organ of state power review model.Since the Constitution does not circumstantiate the procedures and content,there is no law sentenced unconstitutional and no law sentenced null.If the clause of the Penal Code was found unconstitutional,it is not necessary to abolish them immediately.In light of legal economy and feasibility,it is imperative to be flexible in implementing the constitutional goal.