Rule By Criminal Law Under Constitutionalism

This article has a discussion based on constitutionalism and rule by criminal law of these two macro-propositions. Constitutionalism means it's necessary that protecting human rights through restrictions on the power,therefore,the proteceion of human rights is the highest and central value target in constitutionalism.This value target must be implemented and embodied in the system construction and the actual operation of department law ,and criminal law is the most important one among department law. The true sense of rule by criminal law is also a process by restricting on the penalty power's abuse to come to achieve the protection of human rights,which is destiny bond to constitutionalism undoubtedly. Thus,there are common fit in the protection of human rights between constitutionalism and rule by criminal law.I hope to further revealed the relationship between constitutionalism and rule by criminal law through the common fit of the proteceion of human rights.Therefore,this article will combine the theoretical arguments and empirical study ,and apply cross-discipline research methods fully to systematic in-depth understanding and analysis about constitutionalism , rule of law, rule by criminal law , the proteceion of human rights and so on. There is a conclusion that the implementation of rule by criminal law is based on constitutionalism ,and the values of constitutionalism should be affected and infiltrated to criminal law. Under the guidance of constitutionalism , it's feasible that established the human rights protection mechanism within the field of criminal law. At the same time, the value implication of constitutionalism could be embodied through the perfection of criminal law.This article is divided into four chapters:In the introduction, first, questions were raised firstly,which noted the importantance of studying the relationship between constitutionalism and rule by criminal law from the perspective of the protection of human rights.In addition,the introduction has an overview of the theoretical topics of significance, practical significance and situation of the study,and scope, ideas and methods of the study,these laid the basis for the feasibility of the writing of this article.In the first chapter, mainly for constitution and constitutionalism, rule of law and rule by criminal law, human rights and protection of human rights of several groups of related connotation and extension of the basic areas to explore.The first is constitution and constitutionalism. Constitution is the country's fundamental law, but also the protection of human rights books, but also the institutionalization of democracy and the law of the facts. Of course, with the constitution does not necessarily able to achieve constitutionalism.Constitutionalism contains restriction on the constitutional rights and protection of human rights content, including, democracy, rule of law, human rights is the three basic elements of constitutionalism. Then, in line with the constitutional standard of a constitution should be able to reflect the above basic elements of good constitution. Followed by the rule of law and rule by criminal law. There are the form the rule of law and the substance of the rule of law on the rule of law on the points, the form of the rule of law against the rule of man theory is formed on the basis, which emphasized the supremacy of the law but the form of the rule of law on the rule of law is only to satisfy the first layer of meaning, and does not represent all of the rule of law.The genuine rule of law should be the carrying value of the contents of a particular theory of the substance of the rule of law. On the substance of the rule of law means that the rule of law means " rule of law ", but more importantly, should be a " rule of good law." For the "good law", mainly for justice of the law, rights of the law and the advancement of the law. Thus, rule by criminal law means that the field of criminal law's "rule of good law", specifically, the meanings of rule by criminal law should including a legally prescribed punishment for a specified crime, the balance between crime and punishment, the humanitarian issues in criminal law, restraining principle of criminal law and many other contents. Finally, human rights and protection of human rights. Through the meaning and content of human rights set out can be concluded, this article talks about the human rights area mainly refers to the statutory right under the fundamental rights of citizens. At the same time, human rights not only to be recognized, but more importantly is to be protected. Therefore, from a legal right to have the right to real transformation and establish human rights protection mechanisms are very important. Of these, particular importance is to establish mechanisms for legal protection of human rights.The second chapter argument focused on the rationality about constitutionalism as the foundation of rule by criminal law.In the chapter, first Analysis of an inherent relationship between constitutionalism and rule of law. Constitutionalism and the rule of law has a natural connection, first of all, constitutional that the "supremacy of the Constitution," the principles and concepts to be realized, can not do without rule of law. Second, the constitutional limits required by the connotation of political power to be fully realized, is inseparable from rule of law. Again, the value of the constitutional protection of human rights goals to be realized, can not do without rule of law. Rule by criminal law is the concept of rule of law under the bit, then rule by criminal law should be carrying the value of the content required by rule of law, that restriction on the constitutional rights and protection of human rights. In the field of criminal law to restrict the power penalty mainly refers to restrictions on the right to protection of human rights is the constitutional protection of fundamental rights of citizens, and to restrict the right of punishment is to protect the fundamental rights of citizens services. Thus, constitutionalism and rule by criminal law is also in the relationship, including a high degree of fit, and fit one of the most important point is that human rights protection. However, insight into the inherent relationship between the constitutionalism and rule by criminal law does not stay in the protection of human rights should only be fit to this point, but needs to be further extended on this basis to arrive at the conclusion that the foundation of rule by criminal law is constitutionalism. In order to demonstrate the reasonableness of this conclusion, it is necessary constitutionalism and rule by criminal law for all times and to establish and develop the historic process of combing and compare, from which sum up experiences and lessons, while the control rule by criminal law related to the content, revealing the meaning behind constitutionalism .The third chapter consists mainly of human rights protection in rule by criminal law of the location and the specific content of human rights protection mechanism established in rule by criminal law. First, protection of human rights should be regarded as a core value of rule by criminal law exists, in the affirmative on this premise, the need to further clarify what rule by criminal law should be established in what kind of human rights protection mechanism.Through the elaboration of the foregoing, as well as constitutional elements combined with examination of relevant countries, it may be concluded that the protection of human rights in rule by criminal law must be subject to constitutional guidelines. Therefore, the protection of human rights mechanisms in rule by criminal law should be established lies in the constitutional protection of fundamental rights of citizens, specifically including the right of citizens to life, liberty, property rights and litigation can be said of the criminal law on the protection of these rights should be the most powerful.The fourth chapter is the most important ultimate goal of this article, namely, on how to achieve rule by criminal law under constitutionalism. This chapter begins by way of criminal case analysis revealed China's current human rights protection within the field of criminal law, the reality of the situation, and thus points out the difficulty of our rule by criminal law to establish and develop the real crux of the matter. Deal with the problems, a constitutional guidance and application of the necessity and feasibility, and on this basis, how to establish a relatively complete China's human rights protection mechanisms so as to realize rule by criminal law to attempt sophisticated design of the system. The first is the constitutionality of criminal law issues, specifically including the review of the constitutionality of criminal legislation and criminal judicial interpretation to examine the constitutionality of two aspects. On the review of the constitutionality of criminal legislation, the review focuses on exploring the need to review the subject and a review of the specific content of several aspects. Criminal judicial interpretation of the constitutionality of the review is concerned, lies in exploring the constitutionality of interpretation of the importance of criminal justice to explain the legislative tendency corrective and criminal judicial interpretation must follow the principle of legality and so on several aspects. Secondly, with regard to the adjustment of the penal system, first, to protect the right to life from the perspective of the control problems of the death penalty, specifically including the death penalty, legislative control and judicial control. Second, the realization of penalty from the perspective of moderating trend of China's structural adjustment penalty, specifically, it is a step by step to the light punishment from the heavy structure of structural transformation in order to protect the human rights of crime. Once again on the Code of Criminal Procedure in the field of protection of human rights issues, mainly on how to perfect the principles of due process, presumption of innocence principle, illegal evidence exclusion rules and the right to remain silent system the contents of a detailed study. Finally, about the issue of protection of the rights of victims.Mainly around the criminal settlement in the protection of the rights of criminal victims and criminal victims compensation system in the country to discuss the two aspects, and to make appropriate suggestions...