The Research Of Modesty And Restraint Of Criminal Law

There are some common applications of jurisprudence and legal philosophy on the method of research objection.The research of modesty and restraint of criminal law is in the category of criminal law philosophy,it contains the substance of jurisprudence also.The objective of the research of modesty and restraint of criminal law is to seek the source of the power of punishment,to achieve the equilibrium form different functions of criminal Law.The research of modesty and restraint of criminal Law has significance to the research of criminal law philosophy.The process of rule of law in China started relatively slowly.Under the doctrine of severe punishment there is still a gap between the development of our country's criminal law and international society.The recommendation of modesty and restraint of criminal Law Lay the foundation for the review of our country's criminal law,the proposal of limiting state power and the criticism to retribution or deterrence doctrine,fundamentally shaken the leading position of severe punishment and penalty universal in China's criminal law system,and bring us a breakthrough in the future development of China's criminal law.To the legal connotation,the restraining criminal law value pursuit and rational basis for the theoretical premise,be reexamined on China's criminal law idea,The basis of the mainstream western countries realize the path of the modesty of the criminal law on the final choice of China criminal law realization is this article's substance.On the basis of their times and their empirical knowledge,humanistic spirit,logic and law,through understanding of the existence and development of the criminal law to explore the reasonable dimensions of criminal law applicable to draw inferences summary.Modesty and restraint of criminal law is not created by the will of the people,it exists in the nature of criminal law,it's an important part of the criminal law,however,this character need to be explored by human.The restraining criminal law refers to the criminal law in the delineation of the scope of criminal penalty system,construction should be low-key,modest character.Justice,freedom and efficiency is the value orientation of criminal law,and explore in the unceasing exploration process jurists gradually unfolded in the world,the rule of law in the process of human society plays an important role in the promotion.The role and effectiveness of criminal law moderation on the criminal law system is throughout.It can also be said that the history of criminal law is also a history of the development of the spirit of modesty.Modesty and restraint of criminal law sprout in Medieval Western Europe Renaissance.The natural law concept of the protection of human rights and the rule of law ideology of criminallaw plays an important role in the bud,The academic contribution of Hobbes,Montesquieu,Beccaria,let the restraining criminal law jurists in the dark ages of first light.The legal principle of crime and punishment,the balance between crime and punishment principle and the penalty humanitarianism,has become the main demand of the embryonic stage of the criminal law.With the development of utilitarian jurisprudence and social jurisprudence,They were discarded at the same time in the theory of the classical natural law thinking,the empirical analysis method into the research field of law,and made great contributions to the laying of the " ideal world" " The Freedom Trail ",but also for the restraining criminal law from a seed to molding direction.Bentham the “happy” and “pain” as utilitarianism as the core,and the philosophical foundation of the theory of punishment,defined the theoretical limit for balance and justification of penalty configuration.Through the comparative analysis,Webb for the individual behavior and social order is the relationship between crime and punishment of the proposed new point of view,these views will be the restraining criminal law in the context of sociological empirical interpretation.In the social law school and the analytic positivist jurisprudence guided,The restraining criminal law of criminal law 's ability to intervene to re-examine,face the invalidity of criminal law intervention in certain social field,put forward higher request to the criminal intervention limit.With the development of modern capitalist society " not guilty "," decriminalization " process unfolds,the restraining criminal law has been extended to the practice,and further development in major countries in a series of crime and punishment system reform.The rule of law for the realization of Chinese native culture "instrumental rationality" and "combination of value rationality" may be provided,the legal connotation and the restraining criminal law are closely linked,and provide a solid political foundation of criminal law in China.In addition,the lenient and severe criminal policy in the complicated and changeable social crime situation and stability,lag between written system of criminal law to " adhesive " role,through appropriate policies to guide the criminal judicial work,both for the judicial workers in different types of crime is suitable for moderate severity of punishment means the direction,also for them in a broad range of legal punishment sentencing accurately provided the justification of criminal law,this is a standard difficult to deal with the social aspects,and judicial workers "machine thinking" rationalize " cannot explain abstract justice " of choice,also suits the restraining criminal law in need to realize the present Chinese society and the development.The restraining criminal law is not only reflected in the impact on the legislative system,embodied in the perfection of criminal concept,with a correct concept of criminal law,criminal law can only be realized in china.Established in China's criminal law system,the idea of human rights protection,form rational philosophy and light punishment is the concept of criminal law is an important prerequisite for respect and implementation.Now,the concept of human rightsprotection has been recognized in the field of criminal law of our country,but the establishment of the idea of formal rationality concept and light punishment still needs the effort.In the criminal law for the road security criminal law human rights perspective," crime " and the national penalty power will become increasingly tight,corresponding,civil liberty and self-determination space expanding.Formal rationality concept is weak as well as the concept of substantive rationality of crime constitution system nuisance is a major problem in China's criminal law system of current criminal law,the crime constitution will break through the principle of legality bound in substantial influence under rational,into crime discretionary mud bog.In the perspective of criminal law,substantive rationality concept of China's current prevalence is obviously not suitable for the future development of the criminal law must be cultured to form rational philosophy and implementation as a future of criminal law the priority among priorities.But today,the concept of light punishment is still active in the academic level,in our country criminal law practice,progress is slow,but no matter in legislation and in judicial aspects still occupy the mainstream,and in stark contrast to advocate suppression of punishment of the restraining criminal law.Our country's criminal legislation and judicial system with the western countries there is a big difference,non-crime,non-penalty idea essence is worth learning,but the construction of concrete system is to copy the best,still needs to be fastidious.In western countries,no crime,non-penalty contains advanced concepts of criminal law can be used for reference in China,but because of China's current criminal legislation and criminal justice system consummation degree and the western countries still exist bigger difference and distance,therefore,the basic path of China's criminal law modest at present cannot be realized.The civil criminal law,is a compact form of criminal law in civil society in the process of its development.In this form,the establishment and application of criminal law to civil liberty and dignity of the guarantee as premise,is strictly prohibited in order to safeguard the national interests of any right to self-determination,criminal means intervention of civil society.The civil criminal law value criterion just to keep the restraining criminal law,equality,free will,human rights,justice belongs to civil society as the virtue of civil society to the requirements of the criminal code,established the constitutional foundation,ideological foundation and institutional foundation for the realization of restraining criminal law," change " to the civil criminal law is the inevitable choice to guide the realization of criminal law in criminal law of our country modesty.