A New Study Of Penal Functions

The theory of penal functions is one of the most important theories in the field of criminal justice and is vital to the practice of criminal punishment. Without the guidance and support of a reliable theory of penal functions, the practice of criminal punishment will inevitably be confronted with many different puzzles, be led into many different wrong areas and be criticized for having more disadvantages than advantages. In the recent ten year, although many scholars in China have conducted many fruitful researches and obtained many valuable findings, the researches are not comprehensive enough and deep enough and scholars hold different views in many aspects. In practice, due to the insufficient or wrong understanding of penal functions, there exist two inclinations:one is that everything can be done with punishment and the other is that nothing can be done with punishment. In the present China, it seems that criminal punishment is over used to prevent crimes and to safeguard the society. The study of the concept, the classification, the system and the realization of penal functions in this thesis is of both theoretical and practical significance for a better understanding of penal functions and for further study of how to properly realize penal functions.There are four chapters in this thesis, which discuss the concept, the classification, the system and the realization of penal functions respectively.In chapter one, the concept of penal functions is discussed. The concept of penal functions is the corner stone and logical starting point in the research of penal functions. In the papers and books concerned, there are many different definitions of penal functions, which have both advantages and disadvantages. By the comparison and analysis of those definitions, we can conclude that penal functions are the possible positive direct social effects of criminal punishments through their promulgation, application and execution in the realistic conditions. This definition suggests that the penal function has six traits, which are dependency, possibility, sociality, positivity, directness and objectivity. The concept of penal functions is clearly different from and closely related to the following concepts:functions of criminal law, the purposes of punishment, penal effects, penal efficiency and penal values. In chapter two, the classification of penal functions is discussed. It is necessary for us to examine the serious problems in the present classifications of penal functions both for the theories in criminal justice and for the practice in criminal punishment. Tightness, uniformity, fullness and normativeness can be regarded as the four principles in the classification of penal functions. According to different standards, the classifications of penal functions are numerous and we should create new ways to make various classifications at different levels to meet the needs in theory and practice. According to the nature of its contents, penal functions fall into six categories:preventing crimes, atonement, compensation, consolation, general education and safeguard, which is the basic classification of penal functions. Detailed discussions of these six categories are included in this chapter.In chapter three, the system of penal functions is discussed. The different kinds of penal functions belong to a system instead of being separated from each other. The system of penal functions is an organic whole composed of all kinds of penal functions connected with each other and affected by each other in specific realistic conditions. The system of penal functions is characterized by wholeness, potentiality, conditionality, uniqueness, and the combination of dynamic and static state. There exist many problems with its framework, corner stone, layers and sequences in the "two-directional system" of penal functions. The "two-dimensional system" of penal functions, established in this thesis, constructed on two dimensions, the society members as individuals and state and society as a whole, is a new try in constructing a scientific system of penal functions.In Chapter four, the realization of penal functions is discussed. The realization of penal functions is the process of transformation of penal functions into realistic penal effects. The affecting factors, principle, system and ways of the realization of penal functions are discussed in this chapter. There exist many important affecting factors, which include the objectivity and limitations of penal functions, the internal and external rationality of punishments, the people affected by punishments and the social environment. In given conditions, it is possible for the affecting factors to promote or hinder the realization of penal function and the affecting factors may even made the realization of some penal functions impossible. In the realization of penal functions, mean principle should be the fundamental principle. The realization of penal function is a system and systematic thinking should be the fundamental methodology. Having right understanding of penal functions, establishing appropriate objectives, making rational use of the affecting factors, realizing all the penal functions and assessing the realization scientifically are the effective ways to realize penal functions reasonably.