Research On The Vulnerable Groups' Protection Of Criminal Law

The most important and difficult part of the rule of law is how to build a fair,just and free system to ease the tension between the weak group and the strong group.However,in competition oriented social relations,order and efficiency control values of mainstream society,and the projection in the whole process of social governance,performance in the field of criminal law,is the "crime prevention" and "human rights protection",light to form opposites in terms of value,the concept of justice and freedom.In fact,the value theory,the development process of the rule of criminal law,is the process of coordination of freedom and order,justice and efficiency of the two group concept,which is the key,how to locate the relationship between primary and secondary value of these two groups,or that the criminal law should be in favor of freedom and justice and order and efficiency problem.The modern rule of law is different from the traditional rule of law lies in the core,whether in the rule of law in the concept of human values,which is based on the factors of human nature,humanity and human rights etc.the construction of the legal system,legal system,legal operation design specification,the formation model of rule of law to "people" as the center.As a starting point,whether or not to protect and to what extent,the protection of vulnerable groups is an unavoidable problem in the development process of the rule of law society,but also an important basis for the examination of the success or failure of the modern rule of law.To determine the extent to which the criminal law should protect the vulnerable groups,the key is to define the scope of the concept of vulnerable groups and the legal basis for the protection of vulnerable groups.The concept of vulnerable groups is relative,and it is affected by the position of value judgment,but from the point of view of responsibility,combined with the judgment of value rationality,we can divide the range of vulnerable groups worthy of criminal law.Since the enlightenment,the protection of vulnerable groups from the ideological ethics,utilitarian and standard three dimensions to find the theoretical basis,for the formation of vulnerable groups under the background and reference of criminal law protection,criminal law has the special protection of vulnerable groups,mainly based on ethical considerations,which also contains the appropriate standard judgment.Combination of ethics and legal factors,the birth of humanistic value in modern rule of law concept,and the evolution of humanitarian,human rights protection and humanistic values,constitute the theoretical basis of the protection of vulnerable groups.On this basis,from the perspective of substantive justice,the norms of the criminal law to protect the vulnerable groups,the depth of law and ethics in the specific field of the internal relationship.Utilitarianism and its seemingly rational view of instrumental rationality,in fact,there is no fundamental defect of self justification,can not lay the legal basis for the protection of vulnerable groups.At the same time,the protection of vulnerable groups is a bounded domain restrictions,reasonable screening statutory and discretionary factors,accurate understanding of the relationship between the purpose of criminal law and the modern function of criminal law,is an important prerequisite for understanding the limits of the protection of vulnerable groups.The development of criminal law has experienced the evolution rule of law and rule of law thought,codification and modernization "in the protection of vulnerable groups,show emphasis on reverse protection,expanding the scope of protection,crime countermeasures clearly wavering.Today,the criminal legislation has formed a relatively complete system of protection of vulnerable groups,although it may have some deficiency in the scope of protection and protection of strength,but basically rational,forgive the protection of core Limited "requirements.Facing the social values of large-scale conversion of reality,people had a new change for the understanding of social life and the principle of responsibility,put forward new challenges to the age of responsibility,responsibility theory,protection of vulnerable groups to protect vulnerable groups present boundaries,"degenerate" trend.In the face of complaint,criticism and challenge the social psychology,legislators delay and vulnerable groups protection legislation pace,relates to the keywords interpretation of the protection of vulnerable groups focus on criminal law,and at the social level and create criminal control measures to complement each other,and form an effective force of criminal legislation,enhance the effectiveness of the protection of vulnerable groups.China's criminal justice express two different expansion of the protection of vulnerable groups:one is the mode of judicial interpretation of criminal law as the center,to the materialism as the basic concept,through the creation of the standardization and reconstruction of sentencing rules way,expand the protection of vulnerable groups,the scope and intensity of the target.However,this kind of expansion belongs to the criminal judicial interpretation itself,which is based on the unity of the rule of law and the rule of law.Two is the criminal judicial practice as the center,in order to use the judicial discretion as the focus,in the firm expression and legal circumstances of the content,is also concerned.about the discretionary circumstances,the realization of the conservative expansion in the specification limits.This model helps to give play to the role of criminal justice practice,to reshape the relationship between the state and citizens,and to express the pursuit of individual justice.However,the greater the discretion of judges,usually also means that the higher the risk of judicial adjudication,the higher the need for restraint in the active judiciary,eliminating the concerns of the protection of substantive justice.In contemporary China,the criminal policy of the protection of vulnerable groups can only be deserved."Wide and dominant" is the true expression of the criminal policy of temper justice with mercy.Broad and dominant is not to deny the criminal policy of temper justice with mercy,nor to emphasize the absolute protection of vulnerable groups,but in the support of value rationality,to establish the basic position of the limited protection of vulnerable groups.Specifically,it is necessary to carry out the criminal policy of the vulnerable groups in the criminal entity,the procedure and the executive level,which is the policy of criminal legislation,criminal justice and criminal execution policy.First of all,the recent amendments to the criminal law reflects the criminal legislation to take the basic line of "overall conservative and limited expansion in vulnerable groups,is the key problem of positive thoughts and review positioning of criminal legislation fit.Secondly,in the field of criminal justice,criminal judicial interpretation and criminal judicial practice,based on the former obviously,the more aggressive policy stance,the scope of protection of vulnerable groups are keen to expand the latter;adhere to the basic position and width",but to the juvenile criminal trial to choose" wide lenient "attitude,and to other vulnerable groups to implement" leniency,with wide "judicial policy.Finally,in the field of criminal execution individualization,humanization and socialization of execution of the implementation of the policy based on the requirements of carrying out the protection of vulnerable groups,respectively,execution system,execution system and isolation between social integration system,so as to enhance the effectiveness of the implementation of the criminal punishment of vulnerable groups.To construct criminal legislation based on the criminal policy guidance,protection of vulnerable groups in the criminal justice system as the core power,reasonable judgment of criminal legislation,criminal justice and criminal policy based on the characteristic and relationship,but also the inevitable choice of the modern rule of law.Therefore,the criminal legislation should maintain the characteristics of self restraint,the pace of slowdown in criminal legislation to protect vulnerable groups,gradually remove the social governance matters purely in criminal law,protection of vulnerable groups and symmetrical structure,limit the criminal intervention vulnerable groups of crime field,will protect the vulnerable groups of the task handed over to the appropriate special legislation.Criminal policy should play a role in the construction of rule of law,adhere to the criminal policy of the criminal policy of the criminal law,play the active role of the criminal judicial practice policy,and focus on improving the re socialization measures based on the criminal execution policy.Criminal judicial activism should be based on factor into the judicial restraint,unstable factors to curb activism in the applicable benchmark to establish judicial discretion,promote the legalization and standardization of criminal justice.