On Distribution Of Punishment

The theory of distribution of punishment is one of the difficult problems which perplex the penal theory and practice all the time. Whether it is the proper directly concerns the function of penalty or even the whole criminal law system. Especially under the background of fact that the penalty practice presents the trend of hasten strict, the research how can the distribution of punishment can meet the request of rationality, science, humanity has a realistic meaning. Beginning with the definition of distribution of punishment, the text has carried on systematic analysis and combed to the historical development, purpose and basic principle of it. Combined the practice in our country, the text also reviewed the question existing in our country from the real aspect.Besides the part of the preface and the conclusion, this text is divided into four parts altogether. Among them, the preface has explained the source and research purpose of the thesis, and then combed the conceptions of distribution of punishment, so as to establish the basic research category of this text. On the understanding of the concepts of distribution of punishment, there are four theories: the statutory punishment theory, independent category theory, narrow sense category theory, broad sense category theory. This text defined it in this way: Under the circumstances that the kinds and methods of punishment are already confirmed basically, the distribution of punishment is an independent category through decision of launching punishment and the degree of punishment, to fulfill the equilibrium of crime and punishment. Although it can be divided into the statutory and justice levels, it doesn't equal to the simple summation of the two. Standing in a vertical visual angle, the distribution of punishment investigates the relationship of crime and punishment in the statutory and justice levels, and through the formulation and application of the penalty idea, realizes the statutory level to coordinate with the sentencing level, then changed the isolating situation in the past. The first part is the history of distribution of punishment. From the point of view of theory development, the theory of distribution according to concrete form of the crime was the result of the slave society which lacks of the abstract imagination to the penalty system. And following the maturity and stability of penalty system, the understanding to the crime of human society has already begun to go beyond the field of revenging and conflict, and move towards the consideration with steady of the ruling and order, so the theory distributing punishment according to the responsibility for an offence begun to appear. This theory emphasizes on the abstract understanding and appraisal of the result of the crime, the severity of the behavior and subjective fault, and distributed with the stable kinds of punishment. The theory can also be divided into the forms of retributive theory and utilitarian theory according to whether the seriousness of crime is the only foundation. Through criticizing the mistakes of the retributive theory and utilitarian theory distribution punishment according to the criminal offence, the positive school has put forward the theory that the severity of punishments should be distributed by the personal dangerous, namely the individual punishment theory. Through the narration of the basic train of development of punishment distribution theory, we can find out that the differences of punishment distribution theory reflect the differences of penalty purposes in fact. So the system research of theory of distribution of punishment must be begun with the definition of penalty purpose. This touches off the research of the second part of this text too.The second part is the purpose choice of distribution of punishment. The purpose theory of distribution of punishment can be divided in two kinds: monism and pluralism. Among them, the monism theory emphasizes the retribution purpose of punishment, so the distribution of punishment should keep the balance of crime and punishment, and dispose the equal degree punishment according to the seriousness of crime. The contemporary representative mode is"The just desert"model which put forward by Hirsch. The frame of this theory is: first of all, mould the retribution purpose of penalty again, and prove that the purpose of punishment distribution can only be the pure just retribution. Secondly, explain the theory of just desert, so as to ensure that it can realize the justice value of proportionate and equal request. Thirdly, on the basis of compromise on a certain degree, define the grounds excluding or reducing the criminal responsibility, and make them existing in the just desert theory, so the just desert theory can meet the elastic request from the penal practice. The pluralism purpose theory can be divided into three kinds with the differences of merger method: Morris's limiting retributive theory, Roxin's utilitarian limiting theory, and the theory of stage distinguishing. This text holds that, the purpose theory of punishment distribution must fulfill the inherent requests of punishment distribution. These requests include the requests of the plural, the unity, and the specific. The theory need to meet all above-mentioned requests so as to realize the inherent system harmony.Because of this, the text has proposed the theory mode of stage priority, and believes that the distribution of punishment can be directed by the stage priority mode. The third part is the basic principle of punishment distribution. From the angle of limiting distribution of punishment, the text holds that the basic principle of punishment distribution includes at least three: namely humanity principle, parsimony principle, fairness principle. As to the humanity principle, it requires at first forbidding the torture or other cruel, inhuman kind or method of penalty. Combing with the context of China, the emphasis of humanity principle doesn't mean abolishing death penalty immediately, but limiting the application of death penalty strictly. The humanity principle still demands to restrain the severe distribution of punishment, and expand the application of property penalty and qualification penalty. At the same time, it also requires respecting the criminals'personality, paying attention to their needs. The course of punishment distribution should reflect the humanity care, pay attention to criminals'individual differences, and hold the individual character of the concrete case in the generality of the similar crime. As to the parsimony principle, on one hand it requires the parsimony of penalty kinds, that is to say that considering the differences of penalty kinds, distribution the low cost, measuring, reversible penalty kind as possible as we can, in order to prevent possible penalty wasting. On the other hand, it requires parsimony of penalty degree. The penalty in essence is one kinds of evil, so it needs realizing the best degree of distribution of punishment, which means the maximum of benefit and minimization of cost, and prevent the insufficient of penal benefits and over-waste of penal cost. As to the fairness principle, it includes two aspect of content: the fairness restriction of crime evaluation and the fairness restriction of balance of crime and punishment. To the aspect of fairness restriction of crime evaluation, the fairness principle requires abundant evaluation of crime, and forbidding the repeat evaluation. As to the aspect of fairness restriction of balance of crime and punishment, it requires the seriousness of punishment equals to the crime, the equality of punishment distribution and the independent of the subjects of punishment distribution.The fourth part is the realization of punishment distribution. The text selects three important research issues: firstly, because that the aim of punishment distribution is realizing the balance of crime and punishment, to reach this goal, it must realize the effective establishment of the penalty steps at first. Then we can effectively carry on the differentiation of penalty severity and distribute to corresponding crimes. So the penalty steps are the realization foundation and prerequisite of punishment distribution. The text would carry on investigation to the punishment steps of our country with a kind of dynamic visual angle. Secondly, during the stage of legislation distribution of punishment, due to the structure of crime leading punishment in the legislation, the crime legislation structure can be divided into the basic constitutive elements of crime, aggravate or lightening elements of crime. Correspondingly, the punishment legislation structure can also be divided into the basic punishment degree and the aggravated (lightening) punishment degree. The basic punishment degree is corresponding to the basic constitutive elements of crime, and the aggravated (lightening) punishment degree is correspondingly to the aggravated or lightening elements of crime. These two aspects constitute the main part of legislation punishment distribution. Thirdly, during the stage of sentencing distribution of punishment, we should emphasis on the individual justice of the concrete case. In the course of decision of punishment degree the proper use of free verdict is the key element. Through the evaluation and analysis of foreign system of limiting free verdict, china can firstly accumulate the experiences of scientific case directing system. After a relative long time accumulation of realistic data and relevant research, and then consider making legislation of sentence guide which is suitable to our native situation.