| Based on crime and punishment, evaluation on criminal law centers on the social harmfulness and extent of dangerous act, therefore the fundamental of criminal law evaluation is evaluation on criminal harmfulness. Since 1997, criminal code of China has been revised largely. As Principle of Legally Prescribed Punishment established, the system of accusation became more systematic, and the norm of crime and punishment became more standard, while legislative body has been continuously revising and improving. After the release of the nine amendments of criminal law with judicial interpretations, the level of individual case judgment has been obviously improved. Though, these measures are not always effectively improving criminal law ruling. However, to some extent, these phenomena revealed the conflicts around criminal law evaluation in China, such as basic values, functions, the standard of judgment and penalty. Meanwhile, “crime determine punishment” and “determine a crime by statutory penalty” in the judicial practice are always conflicted with each other, which has influenced the functions of criminal law. Then why these conflicts changed? What are the origins, patterns and characteristics of these conflicts? What influences they may bring into criminal law evaluation? How does criminal law works in balancing these conflicts? These questions are of great importance to the harmonious development between protection of human rights in criminal law and legal interest, which are closely related to the realization of the purpose and missions of criminal law. Therefore, this paper seeks to find the solution and methods to balance the conflicts through discussing those questions from the perspective of legislative and judicial practice.Based on theoretical study of criminal law, this paper tries to make an argumentation from a microcosmic view to a macroscopic view. From general concepts about crime and punishment to specific application of conviction and punishment, this paper concludes obvious and meaningful concepts, categories and phenomena of conflicts, with relative typical cases. This paper studies the interaction and balance between all benefits subjects or parties of crime and punishment, and its purposes and results. Meanwhile, through vivid and overall demonstration of the process and modality as well as the game theory in criminal harmfulness evaluation, this paper seeks to proof and develop the theories of criminal law.This paper includes eight chapters, altogether 140000 words.Chapter 1: Theme concepts about criminal harmfulness evaluation will be introduced through theoretical controversy on “the essence of crime”. Based on controversy of the essence crime, under the agreement of necessity of the existence of social harmfulness, this paper believes the core point of legislative body, judicial authority and society is the harmfulness and extent of crime, which is also the fundamental of criminal harmfulness evaluation. Criminal harmfulness evaluation means the standard which legislative body prescribed and the legal consequences they confirmed according to the social harmfulness and extent of dangerous act. Author concludes that social harmfulness and extent of crime is the center of criminal harmfulness evaluation, however, the criminal harmfulness evaluation here means evaluation on the conviction and punishment. Besides, the author briefly introduced the research method and features of this paper, with analysis on present criminal theoretical research methods, and application of economics of law and game theory in the discussing of questions.Chapter 2: This chapter further discusses the conflict on needs of criminal harmfulness evaluation, which means the conflict between special evaluations and common concepts. Criminal law centers on the protection of fundamental rights of citizens and the basic social orders that required for the protection. Article 2 of criminal law states: “safeguard social and economic order”, and it also indicates that criminal law has the function of social governance. While under the coexistence of the development of common concepts and rule by criminal law, special needs will be created from certain unexpected events and specific reasons. These special needs are the unexpected and special needs that maximize the governance effect and interest of the country. These anomaly samples in criminal harmfulness evaluation indicate that special needs existed in certain historical period or occasion will create special legal results. The original cause is the conflict between concepts and ideas developed from the changes of politic, economy and society. Common concepts have continuity and selectivity, while special needs are abrupt and utilitarian. The game theory between them shows the conflict and balance between protections of the legal interest of criminal law(and social governance) and human rights. This paper believes that to establish a criminal idea that focusing on human rights protection is the basic way to solve the conflict.Chapter 3: This chapter further discusses the conflict on the values of criminal harmfulness evaluation. “An eye for an eye” is the main way to show criminal justice and modesty value is intends to define criminal law in legal system. There is more integrity than confliction between them. “An eye for an eye” indicates the doctrine of severe punishment, but it also includes human-oriented basics in the modesty value, which shows the integrity of the two concepts. As to the coexistence of individual and others, the rights and obligations should be cleared, therefore the criminal harmfulness evaluation would be understood by the public, and the establishment of criminal legislation and judicial authority would be reasonable and valuable.Chapter 4: This chapter further analyzes conflict on subjetcs of criminal harmfulness evaluation. In the legislation and jurisdicature of criminal law in China, revision and modification are frequently and extensively, which is the response to call of times, meanwhile it shows the expansion of legislative power. This kind of expansion not only caused the oversize of crminal code but also damaged the judicial power. Mutual restriction and coordination between legislative power and judicial power is the fundamental of an accurate criminal harmfulness evaluation. Therefore, through continously revision of criminal law, a crimie circle should be established in the field of economy and technology, and the standard for economic and techinical methods should be clarified. At the same time, the doctrine of severe punishment should be stopped and the crime circle should be strictly controlled. Moreover, as criminal law has further limited judicial power on the application of circumstances of sentencing, rigid satutory sentences and so on, it is necessary to explore the method to return the power of law interpretation to judge on the basis of the evaluation of law revision.Chapter 5: This chapter analyzes the cognition conflict of criminal harmfulness evaluation. Whether in legislative or judicial process, individual cognition is not always consistent with social identification. In actual judicial practice, subject of litigation is always clear about the cognition on criminal law and fact, while for interests or other reasons, this cognition can be limited. Social cognition is ambiguous for it is far away from the individual cases and facts. As time pass by, cognition of common person is mutable, therefore criminal harmfulness evaluation should be developed under the identification of authentic social and individual cognition as well as rational basis.Chapter 6: This chapter discusses the conflict on time and space of criminal harmfulness evaluation. The best solution of the conflict is that the basic principle and rules confirmed by criminal law are overall followed, though conviction and punishment of individual cases can be different. Criminal law is the basis of legal personality, and legally prescribed punishment has defined the standard for criminal harmfulness evaluation. Therefore, it is of great importance to maintain the integrity of criminal law in the realization of rule of law. Meanwhile, because of the difference of physical time and space, under a unified requirement of criminal law, judgment of individual cases will still have differences though legal person followed the integrated values, thinking steps and logical processes. It is no exaggeration that there are circumstances as many as individual cases. Thus once related to facts and regulations, judgment must be different. The realization of justification of individual cases from conforming to criminal regulation, realizing value of criminal law, systematic interpretation and so on, should be possible to avoid difference in judgment and at the same time maintain the universal values, present regulation system as well as individual feelings. In conclusion, it is the expression of mutual understanding and empathy while applying law.Chapter7: This chapter further explores conflict on methods of criminal harmfulness evaluation. Punishment according to crime or affirming a crime by penalty is hotly contested recent years. Punishment according to crime is legal and fundamental, while affirming a crime by penalty is rational and risky. Most of the time, the products of legislators are not so accurate, even are defective. With the development and enhancement of legislative power, judicial power has to turn to the method of affirming a crime by penalty, therefore to find an acceptable judgment for the public. However, the more this method being used, the more it impacts positive legal thinking, and furthermore it should only be the complement of punishment according to crime.Chapter 8: Last chapter makes a brief conclusion about this paper. Criminal harmfulness evaluation is a demonstration of continuously developing process of criminal law. Conviction and punishment are not always consistent in theoretical and practical area. Nevertheless, the author can not achieve his purpose and make new conclusions as the theme of this paper is too macroscopical. |
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