Research On The Ethical Problems Of The Criminal Law

As a major issue in the field of law, no matter in the continental law system or theAnglo-American law system in the theory of criminal law, ethical problems of criminal lawhas always been concerned. However, with the development of the society and thedevelopment of the theory of criminal law, many scholars had put a question on criminal lawand criminal law ethical (ethics) relationship, these scholars think that morality (usually in thesame sense and ethics use) and criminal law is no relationship, so not by means of the law toimplement the moral. From the process of the criminal law theory, from Greek, Roman masterto the modern scholars, theory views are put forward about the law and moral relations,basically having "minimal moral","not necessarily relations","neutral the view of law","saidcross each other" and "legal ethics had declined" view, and so on. Because of the complexrelationship and the influence of all kinds of theories, it makes people, including part ofcriminal law scholars, not recognize the essence of moral relationship, even if some scholarsknow that criminal law and morality exists some inevitable relations, but also it is hard to saywhy some violate moral behavior is included in the criminal law and other violation of moralbehavior has not been included in the criminal law? At the same time, along with thedevelopment of the theory of criminal law, to the same problems may occur many differenttheories, of which some theories still exist the opposite position, these theories make us soconfused that we can’t tell which is better or worse? The ethical problems research of criminallaw needs to provide a judgment standard for these questions.This passage, from the social existence and human social existence--social relationsalong (with interests primarily), ethics, moral relationship-and the legal relationship of socialexistence--human nature--the need of the people--people behavior logic into the road, anddeduced the performance for the social existence certain social relations. Social relationshipsmainly include people and people, people and society, the relationship between man andnature. And the social interpersonal relationship is mainly for interest relations. However, therelationship of interests includes the need, right, dignity and so on. The ethics embodies andreflects the interests of the relationship between the objective laws and ought to regulate, andit is based on the relation of the growth of the ethical norms and ideas in ethical morality.Moralities are of different levels, there are high, medium and low three administrative levels. Ethics is the social being formed around the benefit relationship of the original set of, and thisset an objective regularity and normative, derives the ethics that is the reaction deal withpeople and people, people and society, human and nature of law and regulating therelationship of interests. So morality is the basis of ethics. Criminal law is based on ethicswhich is the evidence of rationality as a main thread of the full text.Apart from the introduction, this article is divided into six chapters, respectively forethics, morality and relationship of the definition, the criminal law and the ethics investigation,the basic theory of criminal law, crime established structure, the ethical path of criminal lawlegislation, the ethical considerations of criminal justice. The elements in the following:The first chapter is about ethics, morality and the definition of the relationship. Thischapter has a specific discussion about Chinese and western ethical, moral concept and therelationship between each other. At last, we can draw a conclusion that the person’s propertyis the embodiment of social existence, and the person’s property also called human natureincludes social attributes and nature attributes which are organically connected, and in fact theexistence itself has the physical needs and the social needs, because social existence and theneed of the people are the truth and the normal requirements of life (some scholars oftenconsider the need of the people as evil desire). These are very reasonable, no matter on thebasis of the understanding of the fact or on the criteria of judgment. Therefore, the humannature and human need have no good or evil points. The standard of good and evil is to meetthe need of our human behavior evaluation, and then it means that the way of meeting needshas two results, that is those violation from ethics and moral values will be considered evil,and those fulfill the behavior will be considered good. In standard or good and evil evaluation,the human social practice that is behavior should be with the social law, those obey the laware considered good, but those disobey the law are considered evil. Human evil behaviorneeds regulation of criminal law.The second chapter is about the criminal law and ethics history review. We can get theinformation about ethics of western law, Chinese traditional Confucian method features, andthe features and moral base of China’s criminal law after the establishment of PRC from thewestern legal history development that of the heart characteristics and ethical foundation (heredo not distinguish between moral and ethical). This paper focuses on the third, fourth and fifthchapter.This paper focuses on the third, fourth and fifth chapter. In the third chapter for the criminal law basic theory of ethics contains, this part of the concept of the criminal law,criminal nature, crime and criminal law concept of several major ethical principles in thereading. This paper argues that any times of the criminal law is the era of combination ofpublic morality (here we should understand for ethics) and political power. Criminal law is toregulate the behavior of infringing interests or threatening against the basic ethics as crimeand will be get punishment of the law at last. Criminal law concept has profound ethicalimplications behind. The nature of the crime should be from a breach of ethics and law profitviolation to the combination of understanding and interpretation. So, we should learn thecrime essence from the violation of norm and interest. We should understand the crimeconcept from sociology and punishment law. Crime is a kind of unacceptable ethicalbehavior that the public can’t tolerate the great damage. Crime concept is through legislative,judicial and law-abiding law. For example, sociology crime concept belongs to the criminallaw concept, and it can be said that sociology crime concept is the spiritual essence ofcriminal crime, so the criminals shall be punished by both the illegality of evaluation andnormative appraisal. At the same time, this chapter also describes the criminal law of theconnotation of the ethical principle about reading.Chapter four is the ethical construction of judging as a crime, and the content includescivil law, common law and the ethical elements of our country’s crime. The ethicalconstruction of judging as a crime was established to criminal law theory of the crime itself ofethical considerations, it is to point to in the criminal law or reading that was established inthe condition of crime in criminal law itself should reflect the ethical contains, thus let thehuman nature and the light shine in ethics of criminal law.Chapter five is the legislation for the criminal law ethical path, and the criminallegislation mainly expounds the basic theory, the criminal law of the path of the legislation oftraditional path and criminal legislation new ethics path. The author argues that in ethics andlaw of the relationship between the model, the author believed that, the law and the moralrelation model for comprehensive said that is the essence and the unity of parts overlap saidmode, namely the legal and moral represent a fixed standard, morality is a kind of softbinding fixed standard, and the legal representative of a kind of strong binding norms, thenature of the two are the same. However, those into the criminal law disposal behavior canonly those violations of law benefit is the moral behavior, and that is the nature of the crimeshall be against ethical violations of interests, this will make the general of the moral behavior and into the disposal of criminal law and regulations crime to distinguish, such already willdistinguish the moral of the law, at the same time, higher levels in the realization of fusionmoral and law, at the same time, can avoid the excessive infringement of citizens’ freedomand rights, so as to give citizens certain free breathing space, people can get more limitfreedom, this view and views on further deepening of the knowledge of the relationshipbetween moral and law. This chapter of the second and the third quarter expounds the morallegalization related problems, traditional legislation of the transcendence of the path of thecriminal legislation and new ethics path, according to this article, the time has come fordemocratic society and are becoming reality, in this social reality, the democratic society’slegislation is that the people of the legislation, the law is the reflect the will of the people, thecriminal law will become citizens protection of personal interests (including the rights andfreedom) and social order (to represent the interests of the whole civil society) effectiveweapons. From the Angle of view, the criminal law and criminal punishment is not thepurpose of the launch of civil liberties is trampling of citizens’ freedom and rights but theprotection, because of, our country is people’s national, state sovereignty belongs to thepeople, people through the representative elect their own representative to exercise his right ofmanagement of national affairs, as well as through the legislative process to their own willrise to the law, criminal law is no longer the monarch and feudal king or church will andarbitrary, but the will of the people and the expression of interest. Guarantee citizens’ basichuman rights from national power and others interference and attack, promote the basichuman rights of citizens content rich and development has become the core of the modernrule of law. It can be said that the modern concept of law "reign of basic human rights", or"the constitution to" route choice is a new period of rule of law ethics, or call it "the newethics" path of rule of law.The sixth chapter is about the criminal law judicial ethical consideration, and in Britainand our country the criminal law of the judicial ethics appeal was introduced. This paperargues that the court decision of both criminal law and judicial law should be acceptable bythe public, and the judicial process itself also needs to be considered.All in all, criminal law, rooted in the people’s life, should be humanization and should berich of ethical emotion. The criminal law, under the cruelty, should contain human nature oflove. Let the criminal law this "flowers of evil" bear "good fruits” through our unremittingendeavor.