Study On Judicial Implementation Of Modesty And Restraint Of Criminal Law

The code is like the bible of people's freedom.Based on the judgment of the essential requirement and functional duality of the limitation of public power in criminal law,modesty and restraint have become the basic concept of modern criminal law.It depends on the joint function of legislation and judicature that the modesty and restraint of criminal law becomes reality from idea.Most of the researches on the modesty and restraint(hereinafter referred to as “the modesty”)of criminal law are grand narration,which mainly focus on the ideological origin,connotation and function orientation of modesty.However,the implementation of it,especially in the judicial practice,has not been paid enough attention to and studied enough,which cannot provide specific guidance rules for judicial practice.It also leads to the suspension of it and makes it a label theory.Based on the modesty,this thesis will conduct a study from those aspects as follow: the basic theory of the modesty of criminal law,the necessity and possibility of carrying out the modesty of criminal law in judicature,the main problem of the modesty of criminal law in judicial implementation and the main ways to realize the modesty of criminal law in judicature are the modesty of conviction and sentencing.This thesis attempts to find out the theoretical basis and technical path for the implementation of the modesty of criminal law in the judicial system from the perspective of crime theory and penalty theory.Chapter one is the basic theory of modesty and restraint of criminal law.The basic theory of modesty and restraint of criminal law is systematically sorted out and studied in this chapter,which is the premise to study the judicial implementation of modesty.The modesty originated from ancient Chinese,but it was Japanese scholars who introduced it into criminal law and carried out systematic research.The controversy about the specific appellation of modesty and restraint is mainly caused by the difference of research perspectives and discussion level,which cannot express the difference of scholars' understanding of the essence of it.In the theoretical field,the definition of modesty in criminal law is mainly from the perspectives of the limitation of criminal law,the modesty characteristics and the interpretation of literary meaning.After sorting out various viewpoints,the basic connotation of the modesty can be summarized as the supplement,forbearance and economy of criminal law.It's ideological origin is mainly from the modern enlightenment thoughts,the classical school thoughts and the ancient Chinese thoughts of prudent and mercy punishment.The modern enlightenment thought laid the ideological foundation for the birth of modesty,and the modesty thoughts of the classical school is the direct ideological origin of the modesty of criminal law.The thoughts of prudent and mercy punishment in ancient China is consistent with the modesty of criminal law in the requirement of limiting severe punishment and tolerance of criminal law.The orientation of the modesty of criminal law in the theory field is mainly based on the fundamental principle,value,intrinsic limitation and principle of the function of criminal law.The modesty of criminal law belongs to the basic idea of criminal law in theory orientation,which runs through every link and all aspects of legislation and judicature of criminal law.Chapter two is about the modesty of criminal law in judicature.In order to implement the requirement of the modesty of criminal law,the modesty of legislation can only be transformed into the modesty of judicature,The main requirements of realizing the modesty of criminal law in judicature include two aspects: conviction and sentencing.In judicature.The possibility and necessity of carrying out the modesty of criminal law in the judicature stems from the stipulation of criminal mode in the legislation and the application of criminal law of judicial syllogism.The judicial implementation of the modesty of criminal law shows different states in different criminal stipulation modes.In the criminal stipulation mode of qualitative legislation and quantitative judicature,the implementation of the modesty of criminal law mainly depends on the judicature.In the pattern of qualitative and quantitative legislation,although the legislation formally reflects the requirements of modesty of criminal law,it still needs to investigate the provisions of criminal law itself to determine whether the legislation is modest and restrain or not.The determination of the crime quantity elements of the typed behavior pattern is completed in judicature.The application of judicial syllogism is a process of repeatedly verifying from the practice to regulation.As a major premise,the norms of criminal law need to be interpreted in the judicial system.While as a minor premise,the generalization of the facts of specific criminal cases is influenced by the cognitive ability and values of judiciaries.However,it is necessary to re-summarize the case facts when judging the conformity of the major premise and minor premise.Emphasizing importance of realizing the modesty of criminal law in judicature,which comes from the expansion of crime circle caused by the expansion of criminal legislation,and the ways of expanding criminal legislation include the expansion of judicial discretion caused by the establishment of abstract dangerous crimes and a large number of administrative crimes,and the tendency of heavier penalty allocation except the abolition of death penalty.These problems in criminal legislation put forward higher requirements for implementing the modesty of criminal law in judicature.Chapter three is about the problems of the modesty of criminal law in judicial implementation.The contradiction to the modesty in criminal law mainly exists in the determination of crime and the judgment of penalty.There are three main performances of the contradiction in the identification of crime:(1)The expanded interpretation of transparency provisions leads to the formation of pocket crimes.In view of the existence of a large number of transparency provisions in the criminal law,the judiciary not only does not adhere to the basic position of limiting interpretation,but goes against the basic concept of the modesty of the criminal law,and constantly expands the interpretation,leading to the formation of pocket crimes.(2)The dilemma of the application of legitimate causes leads to the difficulty of crime.The dilemma of the application of justification causes leads to the difficulty of decriminalization.Cause of justification bears the function of decriminalization,but the function of justifying causes is limited due to the confusion between prevention from illegality and prevention from responsibility in judicial application.(3)The nihilization of some crime quantity factors leads to the criminalization of petty offences.For those crimes who do not clearly define the amount of crime elements can not be restricted by the proviso in general rules,resulting in a large number of petty offences were convicted and punished.The performances of the contradiction in sentence are:(1)The tendency of severe punishment in sentence,the application rate of reprieve is low and has obvious policy orientation,the amount of fine is higher and so on.(2)The confusion of conviction plots and sentencing plots leads to the confusion of conviction and sentencing.(3)Do not distinguish between preventive punishment and responsibility punishment,and do not set up the concept of limiting preventive punishment by responsibility punishment,the need to exceed the limits of liability based on prevention,especially prevention in general,leads to excessive sentencing.Chapter four is about the modest and restrained conviction in the judicature of criminal law.Conviction modesty is the key to the implementation of the modesty in criminal law,Conviction modesty requires that the crime circle be controlled to the minimum extent necessary in the determination of crime,in order to achieve a certain range of decriminalization.No matter from the crime theory system,or based on the reality of the judicial practice,the restrictive explanation of the constitutive elements,the reasonable expansion of the justification causes and the normative application of the crime amount elements are the only way to achieve the conviction modesty.First of all,it realizes the substantial limitation of the crime circle through the restrictive interpretation of the elements of the constitution of the norm.In the judicial interpretation of such elements that require judicial value judgment,we should uphold the concept of modesty,and limit the interpretation of the evaluation elements of law,empirical rules and the society.The requirement of modesty of criminal law should be carried out in the criterion of constitutive elements and the judgment of conformity of specific case facts.Secondly,the modest and restrain function of decriminalization is realized through the rational expansion of the justification.The cause of justification bears the decriminalization function of the criminal law,and the correct application of the cause of justification is the requirement of the criminal law's modesty and non-criminalization.The special defense stipulated in criminal law is the cause of preventing liability due to the lack of expectation possibility,rather than the cause of preventing lawlessness based on the theory of the balance of legal interest.There is a lack of research on the justification of liability obstruction in Chinese Criminal Law Theory,which leads to a large number of justifiable defense cases being wrongly characterized as excessive defense or not justifiable defense.We should give full play to the special defense's decriminalization function as the cause of liability obstruction.Thirdly,the limitation of punishment scope is realized through the normative interpretation of the crime amount elements represented by the objective penalty conditions.In the determination of the objective penalty conditions,the neutral objective penalty conditions and the constituent elements are strictly distinguished.The judicial confirmation of neutral objective penalty conditions is restricted from the following aspects: the conditional relation between the execution behavior and the objective penalty conditions,the actor's general experience of the occurrence of the objective penalty conditions,and the non-analogy suitability.Policy-based objective punishment conditions themselves reflect the modesty of the criminal law,we should pay attention to the preferential application of these.Chapter five is about the modest and restrained measurement of penalty in judicature of criminal law.Modesty and restraint sentencing is the specific requirement of discretion in criminal law.The penalty should be limited to the minimum penalty to realize the penalty function,its main requirements are light punishment and depenalization.In order to realize the modest sentencing,we should take the principle of proportion,the doctrine of combination and the doctrine of responsibility as the specific sentencing guiding principles.It is necessary to establish the method of sentencing guided by negative responsibility and distinguish between preventive punishment and responsibility punishment and take responsibility punishment as the limitation of preventive punishment.To be specific,in the selection of legal punishment,we should accurately identify the upgrading condition of legal punishment,not take the result that cannot be attributed to illegal act as the upgrading condition of legal punishment,apply the same kind of interpretation rules to restrict the interpretation of the transparency provisions,and appropriately relax the applicable condition of reducing legal punishment.In order to distinguish the sentencing plot that affect the preventive punishment from sentencing plot that affect the responsibility punishment.It is not necessary to negate the preventive punishment by responsibility punishment,nor to make the preventive punishment exceed the responsibility punishment,and it is not possible to exceed the limitation of liability punishment by simply using the offender as a means of deterring ordinary people or the only way to reform the offender.In the discretion of responsibility punishment,the starting point of sentencing should be determined reasonably,and the results beyond the scope of criminal law protection should not be taken as the basis for the increase of responsibility punishment,so as to avoid the repeated evaluation of the same plots.In the discretion of preventive punishment,we should focus on the need of special prevention,limiting the need of general prevention,and making substantive judgment on the plots that affecting preventive punishment.