On The Crime Constraints Of Criminal Penalties

Crime and criminal penalties are the two fundamental domains of criminal law. From a long time, the research usually focus on the constraint relationship between criminal penalties and crime because the influence of "crime constrain criminal penalties" thinking. In recent years, more and more scholars noticed that the independent character of the penalties and the reverse regulation on crime, and then, made much research on the constraint role between criminal penalties and crime to promote the rational operation of legislation and justice. In this paper, I'd like to illustrate the significance of constraint about criminal penalties to crime, as to be helpful to deeper research and judicial practice.This article is structured as follows:The first part about determine the base path of analysis. Chinese Criminal Code accepts that crime is a serious harm act to the society, and criminal penalties are means of the punishment to crime. In this sense, the speed of Chinese criminal legislation runs faster than before. However, judiciary often appear tired and ineffective punishment versus to the numerous charges in criminal law. So, legislature and judiciary appear obvious departure from each other.Study its origin, theoretical research is barely based on the seriousness of the acts and defined the crime. When the legislators believe that certain acts have a serious danger to society, they have every reason to be included in the criminal punishment, especially in the economic field, the acts often involved in large subject, wide range and easily demonstrate the heinous harmful to society. However, crime and criminal penalties can't show the regulation sense until the consciousness of humanity be absorbed into the control system. Therefore, this paper argues that analyzing the constrain significance between criminal penalties and crime would be helpful to profound understanding the nature of crime.Part II discusses the inherent provisions of criminal penalties, analyses the independent character of criminal penalties. Criminal penalties are not just a simple mechanical reaction of the crime consequence, but the development based on the specific social environment and restricted by the public concept of evil. This paper analyze the difference about crime and other unlawful acts, and point out that criminal penalties need to target the subjective act of evil, in order to achieve the purpose of defense and revenge. On this basis, the author analyze the constituent elements and intrinsic properties of criminal penalties, criminal penalties'main function don't lies in social defend and social recovery. Thus, social defense and containment are not good reasons in the legislation for considering the criminal acts.Part three illustrates "criminal penalties constrain crime" from criminal legislation. The traditional theory started the crime and legislation and judicial guidance by "crime constrains criminal penalties", and resulted in a number of deviations and problems. This article holds that criminal penalties are the means of regulate the world, whether including certain types of criminal acts against the deal, it should be considered from the possibility and need of the criminal penalties. At the same time, the single-payment penalties and punishment of crime should not be large-scale units into the scope of criminal law.The fourth part poses "criminal conviction" idea. The traditional view that if the legislature considers all the factors involved in criminal activities for completion, it will leave behind the specific operation of the judicial department to formal logic-based reasoning process, that is, legal norm is the premise, the case is minor premise, case judgment is the conclusion. However, we will find that some latent examples in the justice stage similar with the "crime constrain criminal penalties". This thesis tells about the "criminal conviction" idea specific applied to accuse determination.Partâ…¤start "use penalty address crime" interpretation from a balance level between crime and penalties. Criminal law provisions do not define a precise definition of specific crimes, but only in abstract, general terms to describe the types of crime. Therefore, the criminal law norms may be unavoidable fuzzy and difficult to understand when confronted comprehensive cases. In order to eliminate the imbalance and contradictions on the amount of punishment in the penalty, the law should make a reasonable explanation. This article holds that the interpretation of norms requires a combination of justice case, considering the appropriate sentence and fairness in particular case, also considering the basic principles that crime adapt to penalties and similar judicial experience. At the same time, the article analyzes the guiding role of equity consideration in application of criminal penalties.Part VI applies to the effect from the penalty level, carried out the discussion about "criminal penalties restrict crime". Under normal circumstances, the element of crime exists only in the time of the offense. At the same time, given the penalty for the perpetrator punished, the perpetrators can only be subjective ability to recognize sin, and can be controlled by some to blame the perpetrator, the perpetrator of criminal responsible for this purpose. However, China's criminal law provisions set an objective of criminal punishment in order to set up conditions for the carrying out of regulation to applicable to the effect of policy considerations. This article, based on the penalties applicable to optimize the effect, put the objective condition of punishment into the criminal aspects of the establishment of conditions, in essence, it establish the relation with the eradication of the crime, embody the idea of "criminal penalties restrict crime".Finally, make a brief summary about the main contents of the article, reiterate that the delineation of economic crimes should be more rational in China's current social context, should consider criminal penalties'nature of punishment and its own inherent properties and limitations. Also pointed out that the mainly and fundamental aspect is crime restrict criminal penalties, especially the strong protection of human rights under modern society. The lack of articles and in-depth study of issues still be explained in this article.Overall, the article seeks to explain the constraint aspect of criminal penalties to crime from a comprehensive multi-faceted relationship. The remaining doubts in the academic domain are cleared, with a more clear view to identify the multiple constrain interactions between crime and penalties, provide a rational perspective and the approach roads about legislation and judicial practice.