The Study On The Public Recognition Of The Criminal Law

The construction of the rule of law of Western society and China are under the sameideological background. They can’t escape the Impact of Enlightenment. The enlightenmentthought for the rule of law have a very confident and grand metanarrative. However, there is apotential conflicts between the rule of law and democracy, legal and legitimate. Faced withthis conflict, we can only reconcile the conflict. Construction of Chinese modern law, on theone hand,are weakening and digestion the influence of traditional Chinese legal culture, onethe other hand having a full range acceptance of modern Western legal discourse, thedrawbacks of the rule of law began to show. Under the influence of the rule of law, we need topay attention about the two crime associated phenomena: criminal rules become more andmore, criminal law theory’s pursuit becomes more intense. These changes and trends have acommon feature: with the increasing expansion of the criminal concered national power andexpert power, both physical and theory of criminal law is increasingly out of the public seemsto be the general public can not read things. How to get the public’s identification with thecriminal law, criminal justice activities can’t be a foreign body to the masses, has been a moreprominent issue. The issue of the public recognition of the Criminal Code is proposed underthis background. After the introduction of the background,in this paper, we discussedaccording to this logical order:"what","why" and "how".After the introduction of the background of the public recognition of the criminal law,the first chapter is a resolution of the meanning and content of the public recognition of thecriminal law. The public recognition of the criminal law includes three levels of meaning.Public recognition of the relationship between crime and punishment; Made public acceptthe referee in accordance with the criminal law; Public expectations of the ability of thecriminal law protection of human rights. Correspondence between crime and punishment firstperformance the "decide and to be decided relationship between the already crime and penalty,second performance the "containment and be curbed relationship between penalty and the weiran crime.The essence of the public recognition of the relationship between crime andpunishment is the recognition of the relationship about "punishment from sin" and"punishment can stop sin". It is performance that the public recognize the legislation. Whatactions will be defined as a crime, is a democratic legislative issues, thus, contrary to theprinciples of democratic legislation, will inevitably affect the correspondence between thecrime and punishment. Correspondence between crime and punishment first performance the“decide and to be decided” relationship between the already crime and penalty, secondperformance the "containment and be curbed relationship between penalty and the weirancrime. The essence of the public recognition of the relationship between crime andpunishment is the recognition of the relationship about “punishment from sin” and“punishment can stop sin”.It is performance that the public recognize the legislation. Whatactions will be defined as a crime, is a democratic legislative issues, thus, contrary to theprinciples of democratic legislation, will inevitably affect the correspondence between thecrime and punishment. The essence of public acceptance of the referee in accordance with thecriminal law is to achieve the unity of legal and social effects. Legal effect put the criminal asyardstick, put the legal facts as basis, put the Judiciary as subject, put the investigating thedefendant’s criminal responsibility as content. Social effect put the social universal justice asyardstick, put the facts of life as basis, put the public as subject, put the full restoration ofsocial relations as content. If criminal judgment want to have acceptability,it must implementthe unity of laws and social effects.Referee mere pursuit the law effect will undermine theacceptability of the referee and it is impossible. Public expectations of the ability of thecriminal law protection of human rights is the highest form of the public recognition ofcriminal law. Because the full range of criminal law protection of human rights make theperpetrator feel convinced and make the people who do not have a crime enhance thecognitive psychology:"I’m good". The public will feel that between free and penalties has aclear divide. The public awareness of the criminal law as a tool to safeguard their rights. First,the function of criminal law protection of human rights is reflected in the restrictions on thepowers of punishment. The second function of the criminal law to protect the human rights embodied in the criminal penalties and compensation for victims.The second chapter analyzes the necessity and value of public recognition of criminallaw. Public recognition of criminal law have inevitability and critical value. First, theinfluence of judges itself factors make the judicial process illegal. However, the influence ofexternal system make the judicial process have political nature. Illegal and political nature ofjudicial process opened the chest for the public recognition of criminal law. Because, first ofall, public recognition is extrajudicial rather than legal, second, it is political. All thelegitimacy of judicial decisions must ultimately come from the agree of the public. Legalculture is part of the culture, both have the content of the material aspects of legal norms, thelegal system, but also have the spiritual aspects of the law, including philosophy, psychologyand other.Based on the influence of traditional legal culture, pursuit of public recognition ofcriminal law have the historical inertia rationality. Once again, under the influence of the"pyramid" type of our country power structure,state power system functions necessarily putsocial stability in the first place. The political significance of the public recognition of thecriminal law is that social should stay stability. So the the public recognition of the criminallaw naturally bear in the features expection of the whole state power system. The value of thepublic recognition of the criminal law is that: public recognition is the Important basis for thelegality and legitimacy of the criminal law;public recognition is the requirements of theprinciple of legality, is also an important factor when setting norms and institutions,considerations for public recognition in favor of the smooth implementation of the Criminallaw; On the basis of promoting the realization of justice and order maintenance,publicrecognition in favor of the criminal law upgrading authority and the achievement of the socialharmony.The third chapter is the theoretical basis of public recognition of criminal law.Humanism theory、popular sovereignty theory and deliberative democracy theory providetheoretical basis for the public recognition of criminal law. Humanism advocates that humanis the subject of law practice. Determined by the epistemological, human is also theevaluation of the law. Whether or not the public’s recognition of the criminal law is a concrete manifestation of the human body as a legal evaluation of the Criminal law. Under theguidence of the humanistic philosophy, criminal law must seek the public’s recognition. Thepursuit of the public recognition is the criminal law’s moral character under the humanisticphilosophy. Because the so-called disagreement deviate from the humanistic philosophy.Enhance human values, promote the comprehensive development of man is the goal ofhumanism, so humanism have the character of public recognition. Under the guidence ofhumanist philosophy, cirminal law have the rights dominant nature. Rights dominant refer tothat in the rules of criminal law system rights take precedence over the value of other legalrules. Only the rights-based penal building can reveal the deepest human interests anddemands, through the care of the interests of the public release people’s hearts warm, form theinner identity of the criminal law. People’s sovereignty claims that all the powers vested in thepeople. The people through "contract" granted state’s power. Criminal power as one of thestate power, whether it is punishment formulatment power or punishment investigatmentpower, is essentially people’s power. So, public recognition of criminal law, under the conceptof popular sovereignty itself becomes a public authority recognition or public recognition fortheir “legitimate agreement”、“fair agreement” and “beneficial agreement”. Specificperformance is that, criminal law is enacted by all public, the development and operation ofthe criminal law reflects the will of the public; For anyone in the applicable of criminal law isequality. Do not allow anyone have the privilege to transcend the criminal law. Developmentand application of the criminal law is to better protect the public interest, to promote thedevelopment of the public. Deliberative democracy is a full account democracy theory. ItAdvocate the public actively participate in national political life, and did not give up theboundaries between state and society. It advocate that under the arrangement of proceduralrationality, through a serious expression and communication, make decisions on the basis ofmutual understanding. Deliberative democracy theory provide a theoretical points for thepublic participation in criminal legislation and criminal justice. The public participation is aprerequisite to achieve public recognition.The fourth chapter is about the criminal law legislation to achieve public approval. The public identity of the criminal law implementation consists of legislation and justice.In thelegislative implementation, divided into substantial requirements and formal requirements.Substantive requirement is criminal legislation to respond to public opinion. The significanceof criminal legislation in response to public opinion have democratic criminal law, criminallaw of civil rights and of the people’s livelihood. The criminal law legislative response has inthe legislative technique promote criminal public recognition of the significance of publicopinion; The legislation of criminal law in response to public popularize law is also theprocess of the criminal law. From the three aspects, the legislation of criminal law mustrespond to public opinion in order to achieve the public approval of criminal law. Thelegislation of criminal law to stably, the rational response to public opinion, the transitionmust be implemented by the abstract legislation to responsive legislation. Abstract typelegislation excessive pursuit of formal rationality, ignoring the diversity of social demand, thepublic not to determine the reliable way to express their interests require, legislation is aprocess of a few people develop abstract rules. Response type legislation has three basicproposition: legislation in order to realize the unification of the substantial rationality andformal rationality; the unification of the rationality of the main body and the legitimatebehavior; the unification of the rationality of objective and of the results. The three unifiedbe in favor of the public recognition of criminal law. Participate in democratic theory and thetheory of deliberative democracy establishes the theoretical foundation for the transition ofthe abstract legislation to responsive legislation. Legislation of China’s "criminal law" in1979and1997,"criminal law" legislation, as well as all previous legislative amendment of criminallaw are not a good response to public opinion, generally speaking, belong to the abstractmodel of the criminal law legislation. From the content, the Amendment to the Criminal Lawof the People’s Republic of China (Ⅷ) although has maximum attention of the people’slivelihood, and respond to the public opinion. From the program, it also created beginning ofthe public participation in legislation of criminal law. If Public response have no systemguarantement, Legislation become a "can be left or to the right" activity. Either make thepenal legislation facing the criticism that it have not enough Legislation rational or too much to accommodate vulgar populism, and it could not get rid of the traditional tools doctrine andtion doctrine thinking, either make the criminal law under the deceive of logic totallyself-sufficiency, becomes Legal Elite manufactured but the public can’t Identity thing.Therefore, in order to achieve public recognition of criminal law,it is necessary to establish aresponse type legislation system to better respond to public opinion. Form requirement is toregulate their own quality of criminal law。It Is divided into three areas: achieve clarity andambiguity unity of the language in the legislation; In the form of law article from scatteredtoward reunification; be reasonable and orderly and prominent "private sin" status in thecriminal law system arrangements.The fifth chapter is about the criminal law which achieve the public recognition ofjudicature.In the implementation of judicature, firstly, the thing needs to do is achieve thepublic recognition of the explanation about the criminal law, because the forms of publicrecognition in judicature express as litigation-related public opinion. but public opinioninfluences on judicial rationality only by the judge’s explanation about criminal law. Criminallaw explains that the basic theory tools which the public recognized are Social RelevanceTheory and Common sense of the criminal. Achieving the public recognition of the criminallaw’s interpretation needs to make the explanation generalized, to build the system which thepublic recognized. secondly, the publics who recognize the judicial implementation can notonly pay attention to the entity, also must from the perspective of procedure, making thepublics participated in the judicial process. The publics as a legal audience who participateactively in the application of the criminal law can make the results widely recognized. ThePeople Supervisor system and The People Jury system in our country are main forms ofpublics who participating in justice, But there are also defects exist in two systems, whichneed to be improved. Lastly, in criminal proceedings,the final say predominate in the judge’shands, this voice is not rely on judicial power’s monopoly, but by a reasonable interpretationof criminal law norms.thus gaining recognition of the publics. criminal judgment is thecarrier of the reasonable norms of criminal law,the judges should enumerate more reasons ofcriminal judgment. Judgment theory is a dialogue between the judge and the public media, the goal is to make the interpretation of the criminal law publicly, fully accept various socialstrata’s review and evaluation, so as to make the legitimacy of conclusions get the recognitionof the publics. Our country’s criminal judgments and debates exist two defects, which arecondemn and debate stylized, measurement of penalty’s theory inadequate, these two areasneed to be improved.