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Expansion And Restriction On The Function Of The Criminal Law

Posted on:2015-01-29Degree:DoctorType:Dissertation
Country:ChinaCandidate:C ShenFull Text:PDF
GTID:1316330428975205Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Study on the function of criminal law is the basic theoretical issue in criminal law, but there are some different opinions on the expansion and restriction of protection function of criminal law in recent criminal theory and legislation. In this paper, the main line is the limition and the expansion of the protection of the criminal law, and it is problem-oriented. Attempts to answer the following series of questions:Whether the expansion of protection function of criminal law exist? Is this expansion legitimate?What is the form of the expansion?Whether the expansion of the criminal law should be restricted? How to restrict the expansion of the protection function of criminal law?How to get a balance between the expansion and limition of criminal law?And thus it should be made to strike a balance between the two before, to satisfy the practical needs of expansion of protection function of criminal law. But simultaneously,it also can not go beyond the traditional basic principles of criminal law,we should adhere to the basic nature of the guilt of the criminal law.This article includes four chapters except introductions:In the part of introduction, the author mainly introduce the social banckground of the article and the discussions on this problem, then pointing out the meaning of the article.Nowdays, the social security has become an important orientation of criminal legislation, therefore, scholars has discussed how to get the balance between the value of freedom and order in criminal law, and put forward many new ideas and theories. In this paper,based on the analysis and summary of the theory, the author hope to discuss this issue from the perspective of expansion and restriction of the protection function in criminal law.The first chapter is to interpret on the protection function of criminal law.Firstly, start from the general principles of the penalty function,The function of the criminal law can be divided into body function and purpose function, the body function refers to the behavior regulation function,The purpose function of criminal law refers to the human right safeguarding function and social protection function.On this basis, the internal mechanism and external mechanisms of the protective function of criminal law is analyzed. The protection function of criminal law has its own goals and values orientation, it is restricted by behavior regulation function and safeguarding function.The second chapter focuses on the expansion of criminal law protection function.Firstly, it investigate the social background of the expansion of protective function of criminal law,and analysis the risk social theory,And on this basis, the author judge that our country did not enter the "Risk Society" which many scholars described at present. But the increasing of risks of modern society is a fact,Criminal law can play a preventive role on the part of man-made risks.In addition, the criminal law as a means of social management should actively respond to changes in social situations. These are the social reasons of the expansion of protection function of criminal law. Secondly, the paper also discusses the performance of the criminal law protection function expansion both from the theory and legislation, and summarized the manifestation of the expansion of protection function of criminal law.The third chapter analyzes the restrictions on the expansion of the protection function of criminal law.Although the expansion of criminal law protection function is necessary, but it should be restrained. First, the expansion of the protection function of the criminal law should be limited by the human rights safeguard function of criminal law, In current social environment, the function of the criminal law should insist on human rights protection mode. Secondly, the expansion of criminal law protection function is also limited by the fundamental principles of criminal law,Although the basic principles of criminal law is not static, but the insistence of core concept and content of the basic principles of criminal law is a bottom line of function of the development of the criminal law.The fourth chapter is to explore how to seek the balanced between the limition and the expansion of protection of the criminal law and in order to achieve a coordinate development of protection function of criminal law. There are mainly two alternative paths to achieve the coordination. First path is the unified path which emphasizes the function of criminal law, the second path is the dualistic path which means penalty and the Security Measures coexisting.By comparing these two paths, the author believes in upholding the human rights protection function on the priority position, the nature of our criminal law should still be the responsibility acoording with the crime.At the same time, we should recognize the moderate expansion of criminal law, in order to achieve balanced development ot the function of criminal law. And the nature of the crime should be " Violation of Norms ",while adhering to ontological legal interests, so we can achieve restrictions on the power of national punishment.And the nature of the penalty is the theory which integrate the nature of penalty with the purpose of penalty. The essence of punishment is retribution, but the multiple purposes are also necessary to the punishment. Retribution as the essence of punishment throughout the implementation process of the penalty. In the different penalty phase of the implementation process mainly reflects the different purposes of punishment. Finally, under the premise of circle of crime expanding, penalty mitigation should be the direction of the development of penalties, to acheive the coordinate development of the protection function of criminal law.
Keywords/Search Tags:Function of Criminal Law, Protection function, Safeguard function, Expansion, Limition, Coordination
PDF Full Text Request
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