On The Pubnishment For Irregularity In Petition

The institution has always been one of the important issues in study of politics. Data combing and philosophical speculation are two traditional methods. There are serious limitations in their methodology. According to the present consequents of petition institution, this sign is distinctive. On the basic of assimilating the contemporary human intellectual accumulation, this paper adopts the way of evolutionary coupling theory to analyze the petition institution of modern China. Under the guidance of this methodology, we discuss the petition institution by putting it into the horizon of the evolutionary stability, which is the meta-theory of it.First, we described the evolution and strategies of cooperation by getting help from the evolutionary game theory, especially from the exciting researches of Robert Axelrod and Maynard Smith. A combining strategy called TIT FOR TAT always win experiments in a variety of situations. This combining strategy is to take cooperate in the first step, and then repeat opponent’s every last choice. It cooperates when the other cooperated in the last step and betrays when the other betrayed. It treats the other whit how the other treats it. Axelrod thought the goodness, the retaliatory, the tolerance and the clarity as the intrinsic reasons for it to win. Because it occurs within evolutionary game naturally, rather than is imposed from the outside. So it is particularly in line with Hayek’s "spontaneous order". Subsequently, we tested it with empirical evidence of biology, cultural anthropology, law and politics. The results indicate this strategy is an Evolutionary Stable Strategy (ESS). That is to say individual or group which takes this strategy will not be lost to competitor in the competitive environment at least, regardless of the existence of intelligence or microorganism. And there is possibility of it guiding the other to get mutually beneficial cooperation. To achieve this win-win cooperation, not only contributes to the punitive content in the rule of cooperation, but also contributes to the punishment mechanism which can defend the rule. In short individual or group which is evolutionary stable must have some forms of punishment or must follow some kind of rules which have punitive function. This is inevitable not only to protect itself or to protect specie and is the basic of the game equilibrium even the mutually beneficial cooperation.In the second chapter, we studied the evolutionary process and result of the petition institution of contemporary China in the method of institutional evolution theory. The petition institution is the institutional products of the Mass Line which was explored by the CCP (Chinese Communist Party) during the harsh revolution. The Mass Line is called one of the three heirlooms of the CCP, and is one of the important mechanisms of the CCP to win the struggle. During the period of revolution and war, the brutal crackdown or mop-up was the most direct pressure of political ecology. Can’t adapt to the pressure means to be eliminated. The Mass Line of the CCP played three functions of political mobilization, interest integration and disciplining the members in the political ecological environment. It got the unprecedented excitation of people’s enthusiasm and strength. Actually, it was a mutualism symbiosis mechanism between the CCP and people. And it made the CCP win out eventually. As the researchers, we know that the mutualism symbiosis mechanism in the Mass Line, but not the form of the Mass Line is the magic weapon to win. The foundation of the PRC marked the great changes of political ecology. But obviously, limited by the whole political institution, the mutualism symbiosis mechanism of the Mass Line didn’t get effective inheritance, but became the tool of political movements. We think an effective mutualism symbiosis mechanism hasn’t been set up in practice still now, although we troubled in all kinds of setbacks and distress. The peaks of petition in for more than twenty years are the direct reflection of this dilemma. How to seek for a new mutualism symbiosis mechanism in the new political ecology, but not stuck in the out time form, is the top priority.As mentioned, the institutional rule must include punitive content. And the bottom line of rule is punishment too. The object of punishment is illegal behavior. Therefore, to study the actual effectiveness of the petition institution has to study the illegal behavior and the punishment for it. In the third chapter, illegal behaviors had been study by two ways. One is the analysis of laws and regulations which mean to inference the logical consequence from the legal norms. The second way is to induct from all kinds of empirical evidence. In general, the main problems of illegal behaviors in practice include the constitutionality and legitimacy of laws and regulations of petition, delay, shuffle, cut the visit (rob the visit), write off, retaliation, buy, entrust held, etc.The forth chapter begins with the general theory of punishment. Based on the integration of retributivism and utilitarian, the appropriateness of punishment is discussed, such as the object, the efficiency, procedures and forms of punishment. Among them, the efficiency of punishment is particularly important. It is mainly influenced by probability, severity, consideration of cost-income, and the time factor. Research shows that the probability has the biggest deterrent force. Therefore, we suggest that should focus on improving the probability, but not the severity of punishment for the illegal behavior in petition action. Then we discussed the forms of punishment which include public punishment and private punishment. In theory, the two should play their comparative advantage, thus to realize a complementary advantage. When studying the public punishment and private punishment of the petition institution in contemporary China, we find the situation is very serious. There is a strong contrast in realities, i.e. the loss and failure of public punishment to the illegal behaviors of working staff and a shocking and rampant of public punishment for the petitioners. It is called the "privatization of public punishment". It includes two kinds of situations. One is the public punishment decayed to a tool of political struggle and a personal avenge in name of public interest. So the public punishment lost its fairness and effectiveness inevitable. The second is some individuals who are unbearable to the loss and failure of public punishments have to put punishment into effect by private punishment. This is public punishment in name of private. The privatization of public punishment is a matter not only about the establishment and abolishment of the petition institution, but also in relation to the justification of the whole political institution.In the part of conclusion, we think because of the loss of appropriate punishment for the illegal behaviors, the petition institution has been into alienation totally. In addition to the technical factors of punishment mentioned above, some factors of the political value orientation in contemporary China can hardly absolve themselves from the blame, especially the political totalism and moral idealism. The political totalism worships the public power and thinks that the public power is omniscient and omnipotent. Many legal norms in the petition laws and regulations assume a institution of public power which is utter devotion for others, severing the people wholeheartedly, penetrating and Quinn. Moral idealism is always trying to transform people to be perfect. Laws and regulations of petition institution require the working staff according and the petitioner to the moral standards, such as must be zealous, must adopt the public opinion with open mind, must be genial, and must make allowance for the state and government and so on. These kinds of legal norms completely do not comply with the basic principles of legislation. This not only causes difficulties even impossibilities of punishment for the illegal behavior, but also gives the petitioner more higher expectation and more despair in result.In short, the important thing is not the petition institution, but the political and social functions which are undertook by the petition institution. If there is no fundamental change in the political structure, the political and social functions which are undertook by the petition institution will not be able to realize. And the political consequence will be very serious.