Study On Cautiously-Applied Punishment

The Power of Punishment is the power of the state to punish crimes.It characterized by both violence and instrument(utility).The state should be particularly cautious when it initiates and exercises the power of punishment because the power can deprives citizens of not only property and fame but also freedom and even life.It is historically proved that the power of punishment must dissimilate into an instrument by which the state can rudely rule all citizens including suspects,defendants and criminals if it cannot be restricted and limited.Therefore,whether the power of punishment can be effectively restricted or not is an important symbol of whether a state realizes rule of law.This paper involves the following subject.During the important period of building harmonious and people-oriented society,how shall we cautiously exercise power of punishment so that it can effectively combat crimes and protect human rights,but also properly punish criminals showing humanitarianism and mercy to criminals.This paper is composed of six chapters.It aims to put forward a proposal for the reforming system of punishment.Chapter One:The definition and purpose of cautiously-applied punishment.The cautiously-applied punishment is to exercise power of punishment.It includes initiation of power of punishment,defining the scope and focus of criminal punishment,choice of type of punishment, combining criminal punishment and leniency and designing various penalty system and even the application and enforcement of specific criminal law. All these must be cautiously conducted,no careless is allowed.Broadly speaking,it is a kind of concept,an idea and a value orientation.It not only involves the concept of punishment,but also the choice of criminal policy, the structure of criminal law network,the configuration of specific punishment,design of punishment system and the applicable principle and enforcement of punishment.As a whole,it is a systematic project. Narrowly speaking,it is to apply power of punishment cautiously and properly under the direction of such concept,idea and value orientation.In details,it has three basic meanings.Firstly,we will try to narrow the applicable scope of punishment,reduce the applicable amount of punishment and make sure the punishment is the final method in the legislation of criminal law.Secondly,we should adopt a cautious attitude to apply punishment in accordance with cautious and proper principles of application at the stage of application.Thirdly,we should insist on humanitarian principle and expand the applicable scope of non-imprisonment and socialization of enforcement at the stage of enforcement.The purpose of cautiously-applied punishment is to defend human rights.The base of such concept is mainly mean and humanitarianism of punishment.The cautiously-applied punishment is strongly contradict to torture and severe punishment,but does not mean just apply minor punishment.Chapter Two:The Chinese sources of cautiously-applied punishment concept and foreign ideas.China is the country with a long history of cautiously-applied punishment.Confucius concept on cautiously-applied punishment has an imperceptive effect on our criminal tradition and principle of punishment.This chapter mainly analyzes and summarizes the sources,representatives,principles and practice of thoughts of cautiously-applied punishment aiming at analyzing its political and legal effects on China and its importance and values to today's society.While other countries have no such clear thoughts of cautiously-applied punishment as China and the theoretical base is different,their ideas of cautiously-applied punishment exist in the criminal principles and systems. We can say there are similarities among various countries.Chapter Three:Cautiously-applied punishment and criminal policy. Criminal policy is a general guiding policy of a historical period.It is a guide for criminal legislation and jurisdiction.The cautiously-applied punishment is the basic starting point and also ending point of criminal policy.Neither the current criminal policy of combining punishment with leniency nor other specific criminal policy can be contradict to the basic requirements of cautiously-applied punishment.But this paper clearly points out that the policy of aggravated punishment violates the idea of cautiously-applied punishment and should be abolished.Chapter Four:Cautiously-applied punishment and criminal law network.The criminal law network,in the author's understanding,is the figure of speech of criminal law rules,comparing the criminal law rule to a legal network controlled and exercised by the state.How to build criminal law network? What is its structure and type like? What type does our current criminal law network belong? How to define the scope of crime circle according to the criminal policy of cautiously-applied punishment? The author expresses a personal view on this issue and provides a solving proposal.Chapter Five:Cautiously-applied punishment and the application of punishment.The application of punishment is a practical issue with complexity.Under the idea of cautiously-applied punishment,we should abide by the principles of cautiously applying punishment and properly employing punishment.And at the same time,we should speed up to establish the diversified system of punishments which meets the requirements of cautiously-applied punishment and increase the number of new types of punishment which can provide more choice and possibility for application of cautiously-applied punishment.This chapter puts forward an opinion on how to reform our current types of punishment and how to make the most reasonable connection between various punishments in order to realize the greatest social interest of reducing punishment and cautiously-applied punishment.Chapter Six:Cautiously-applied punishment and enforcement of punishment.Law itself cannot walk.The best punishment system can function only in the practice.During the enforcement,the directing function of cautiously-applied punishment cannot be ignored.According to the running rule of punishment and methods of enforcement,the author puts forward proposals on reforming the enforcement methods.For example,the author proposes a new plan for reforming suspension of sentence,commutation and parole.For instance,establishing a series of system of socialized enforcement such as new system of suspension of sentence—suspension of detention,new system of commutation--automatic commutation and new parole system--unconditional parole.