Research On The Adjustment Of Criminal Sanction System Structure

Criminal sanction refers to the substantive response of the behavior that seriously endanger society through criminal law based on the purpose of crime prevention,that is,the substantive legal consequences provided by criminal law.With the increasing diversification of criminal phenomena,criminal sanctions to respond to crimes tend to be diversified.Punishment no longer completely cover all types of criminal sanctions.In addition to punishment,security sanctions,criminal confiscation,criminal damage compensation,non-penalties punishment methods and other measures bear the functions of criminal sanctions and complement each other,forming a complete criminal sanctions system.However,China's research on the sanction system centered on punishment is relatively weak.The normative discussion of the "criminal sanction system" in China's criminal academia is rare,and the research on the "criminal sanction system structure" is unprecedented.This article proposes that the criminal sanction system should refer to the system formed by the combination of measures taken by the state to punish criminal illegal behavior according to the criminal law for the purpose of equalizing responsibilities or preventing crimes.The structure of criminal sanctions should refer to the types of various criminal sanctions in the criminal sanctions system,as well as the combination of factors such as the proportional relationship and hierarchical arrangements,which is the institutional basis for the functioning of criminal sanctions.The unreasonable structure will inevitably lead to the failure of the purpose and dysfunction of criminal sanctions.Therefore,the focus of studying criminal sanction system is to study its structure.The structure of criminal sanction system should be studied from horizontal and vertical dimensions.The horizontal dimension of the structure of criminal sanctions system refers to the horizontal combination of different types of criminal sanctions.At present,the horizontal combination of criminal sanctions in the world mainly includes the singlepunishment system,the "punishment-security sanctions" dual-track system,and the multi-track system of criminal sanctions.The vertical dimension of criminal sanctions system refers to the vertical arrangement and combination according to the severity of criminal sanctions.In the occident,the vertical pattern of "imprisonment-imprisonment alternative-other non-imprisonment measures" based on crime stratification is relatively common.While examining the status quo of China's criminal sanctions system structure,in terms of horizontal dimensions,our criminal sanctions system is a implicit multi-track system under the polarization of punishment.The criminal law of our country has no special provisions on security measures,but in the criminal law and the criminal procedure law,there are many sanctions that obviously have the nature of security measures.Sanctions having the nature of security measures are also scattered outside the criminal law.Because there is no clear legal status,these measures lack systemicity and unity,the source of the law is confused,the decision organ is multi-headed,lack of clear defining principle,legitimacy and legitimacy are questionable.Although criminal confiscation and compensation for criminal victims are stipulated in the criminal law,they are attached to the provisions of the punishment system and have no independent status of criminal sanctions.To some extent,this also leads to the weak judicial attribute and the strong administrative attribute of confiscation,and the lack of coercive force to guarantee the compensation of criminal victims.Especially the unipolar system of punishment is relatively closed,On the one hand,new sanctions cannot be entered into the punishment system.On the other hand,preventive measures,because there is no security measure system,regardless of whether it is classified as "punishment" or "non-penalty punishment method" and cannot be realized under the existing closed structure.As a result,legislators added the new criminal sanction method within the existing structure.Positioned as "punishment execution measures","enforcement supervision measures","preventive measures ",etc.,resulting in a chaotic structure of the criminal sanctions system.In terms of the vertical dimension,since there is no clear crime stratification in China,the severity stratification of criminal sanctions is also "implicit".In China,three years' imprisonment is basically the dividing line between "imprisonment and imprisonment alternative".Death penalty and imprisonment are the main factors above the boundary line,and imprisonment is the main factor below the boundary line,supplemented by the imprisonment alternative.Generally speaking,imprisonment occupy the mainstream both the upper and lower levels,which cause a strict criminal sanction system.The distinction between criminal policy and criminal sanction measures needs to be strengthened.The lower limit of China's imprisonment sanctions falls into the Law on Penalties for administration of public security,which has failed to play a decisive role in detention,resulting in a blurry line between administrative sanctions and criminal sanctions.It is necessary to adjust the structure of our criminal sanctions system.At the legislative level,China's current criminal sanctions system structure is inconsistent with the recent criminalization process,which has mainly increased the number of misdemeanors,malum prohibitums and potential damage offences.On the one hand,the diversification and individualization of light Sanction corresponding to misdemeanors is relatively poor.On the other hand,the strict criminal sanction system cannot provide reasonable space for the criminalization of misdemeanors in the future.On the judicial level,misdemeanor cases with imprisonment of less than three years,detention,control punishiment,and even a single accessary punishiment have accounted for more than 80% of all sentencing cases.The criminal sanctions against misdemeanors are still based on imprisonment.The rest sanction measures for misdemeanors are in the status of "marginalization" and "decentralization".On the whole,they lack flexibility and correspondence,and need to be adjusted urgently.At the policy level,China's criminal sanctions system is more than adequately under the criminal policy of temper justice with mercy.From all perspectives,it is necessary to adjust the structure of the criminal sanctions system.The criminal sanction system is an important part of social governance and social control.In terms of the principle for the adjustment of China's criminal sanctions system structure,this article takes the perspective of the Social penology.Based on the investigation of the relationship between the evolution of Chinese and foreign criminal sanctions ideas and the stage of social development,and based on China's reality to determine the basic principles and direction of the adjustment.Occidental countries have experienced the social forms of the Rechtsstaat,the Welfare State,and the Security State,and developed the concept of retributive sanctions,preventive sanctions,restorative sanctions,and risk control sanctions.The particularity of context and complexity of social governance and social control in contemporary China lies in the fact that we have to "go beyond the time dimension of modern--modern--post-modern,and simultaneously complete the construction of t the Rechtsstaat,the Welfare State,and the Security State at the same time ".In this process,first,we must adhere to the principle of value equity that is in line with China's development stage.The justice of the Rechtsstaat requires the emphasis on human rights protection,the emphasis on restoration and correction by the Welfare State,and the emphasis on the management and control of crime risk and the sense of safety public by the Security State.These all should respond in criminal sanctions system structure reform,and in general adhere to the adjustment direction of mitigation and restraint of criminal sanctions.Second,we must adhere to the principle of organic integration of diversified sanctions.We can adopt different sanctions to distinguish crime categories and absorb the rational core of diversified sanctions.We can form a comprehensive and complete criminal sanction system through organic integration.In terms of the horizontal structure of the criminal sanction system,combined with the existing criminal sanction measures in China,the adjustment focuses on highlighting the multi-track criminal sanction system driven by the two poles of "punishment-security sanctions".First of all,on the basis of emphasizing the importance of dangerousness,we should construct China's security sanction system,stipulate the security sanction in the special chapter of criminal law,clarify the basic principles,specific measures,the relationship with the punishment,and establish the risk assessment mechanism.Secondly,it is necessary to clarify the independent criminal sanction status of criminal confiscation,criminal victim compensation and non-penalty punishment methods.The "implicit" multi-track system in the criminal law of our country should be "explicit",and the criminal sanction system structure of "horizontal multi-track,highlighting the two poles" is constructed.In terms of the vertical structure of the criminal sanctions system,this article creatively proposes the layering of the criminal sanctions system.on the one hand,it is necessary to use imprisonment as the boundary between criminal sanctions and administrative sanctions.On the other hand,the "imprisonment-imprisonment alternative" dividing line is used to divide the severity of the criminal sanction system and to construct different criminal sanction systems.The adjustment direction of the criminal sanction system above the demarcation line is " combination of leniency and strictness,tend to be reasonable".The criminal sanction structure should be established with the free punishment as the center,the death penalty strictly restricted and the non-imprisonment system improved as the two wings.The adjustment direction of the criminal sanction system below the severity line is to focus on the lighter,and lighten the lighter,and build a new pattern of “imprisonment alternative as the center,supplemented by imprisonment and by other non-imprisonment punishments”.