Study On The Dynamic Of Power Of Penalty

Power of penalty is a double-edged sword. It can not only protect human right but also infringe upon human right easily. It is a vital sign of whether a country coming true rule of law or not that if power of penalty is regulated effectively. During building the harmonious society, they are core of attention of theoretical research of power of penalty that how to use national penalty power carefully and how to make human right defense in the whole launching and exerting of power of penalty. We use the subject of on studying the dynamic of power of penalty in order to multi dimensional analyses demonstrate fundamental rules of moving and developing of power of penalty and find the running of penalty power normative and reasonably during rule by law. There are five chapters in the thesis. The main contents are described below.The first chapter introduces and explores divine right of kings and contract doctrine which are two kinds of theory of organic of power of penalty. Then analyses the websphere of thought of power of penalty, and discuss limits logos and culture base of power of penalty abroad. In the West, where people had a well-developed concept of contract, birth of nation is considered result of contract, which deem against reality and unverifiability, but provides joker for people to use civil rights to limit state penalty power. As the legal guarantee for the restriction of penalty power, natural law is regulations on the relationship between the power and the right, because power of penalty can't has the legality of force without enfeoffment and authorization of rights from people. However, this theory has been viewed as bourgeoisie ideology and submerged in the mainstream ideology of state-orientation and high politicalization.The second chapter analyses the development of power of penalty and the creation of rule of law. It is a symbol of rule of law from savagery to civilization that power of penalty develops from expanded abuse to employ rationality and modesty. During the development of power of penalty and the creation of rule of law, French sociologist Durkheim's theory of social solidarity and Foucault's theory of power analyzed to penalty expend the study on penalty and power of penalty beyond law. They unscramble the development of power of penalty and interaction with rule of law from different visual angle of sociology of law. They try to understand the role of penalty as a suit of particular social process in a broad social net. They give the theory of power of penalty more far-reaching social factor. Their theories indicate there are all kinds of social dependent factors without demand of crime curb behind penalty, and the penalty has social effect exceed crime curb itself.The third chapter discusses the modern evolution of power of penalty and rational regression of penalty system. In modern theory of power of penalty, theory of new social defense, restorative justice and victim-offender mediation make the traditional theory of power of penalty increase many new contents. These theories indicate multi-hierarchy of penalty purpose. The design of penalty system gives more importance to development of offender and victim. It is reduced underdog effects of'label'and'social mind'bring by penalty itself. Penalty system became close with criminal policy. The victims begin to enjoy the power of participation on lawsuit. Penal prosecution is far less state ruling affairs completely, but a kind of public affairs. This lawsuit allows victims of effect possibility to criminal proceeding which forms distinctive systems of restorative justice and victim-offender mediation. These systems incarnate diversity of running mode of power of penalty. It not only saves penalty resources but also reduces adverse effect to victims that penalty brings about and is in favor of criminals'reintegration to society.The fourth chapter discusses the rational containment and partially enfeoffment of the contemporary power of penalty. Going by the modern evolution of power of penalty and rational regression of penalty system, the running of contemporary power of penalty takes on rationality and temperance. With the social contract theory becoming support of social development of civilizations and headstream of system legalization of legal state, there are part changes which countries monopolize the power of penal prosecution. Since state power is collection of personal rights of people transferring, it is necessity of history that part of state power return to the society when country and society develop to certain stage. So, that is adapted to running logic of power and right which contemporary power of penalty is partially enfeoffment. It contribute to temperance and withdrawn of power of penalty. There are two means of the rational containment and partially enfeoffment of the contemporary power of penalty. One means relieved and temperance of penalty, the other means use civil and administrative measures to substitute part of penalty, even a part of penalty power of slight crime execute by the society. These measures mostly include revolution of treatment fashion to offender, decriminalization and depenalization.The fifth chapter explores and analyses concretely dynamic of power of penalty and perfection of criminal network in China today. These factors prompt the running of power of penalty more cautious including effect of social background, acclimatization of logos of rule by law and transformation of state governance. The antenna of power of penalty is presenting the tendency of retreat. Some progressive logos and systems indicated power of penalty already sound the bugle forward such as penalty reprieve, criminal policy of temper justice with mercy, restorative justice and community corrections. Of course, some aspects are neglected and optimistic. Particularly we should defend negative effects of logos as power combo and the nation standard penal conception. These logos must lead logic tendency of the power of penalty to authoritarianism of criminal law in collective unconsciousness. Therefore, in today's China, the logos of power of penalty should be changed human right defense logos. The function of criminal law should be reverted from single social protection to social protection and human rights protection developing simultaneously. The position of criminal law should be changed from body politic standard and power oriented to independent civil society and right oriented. Penalty structure should be adjusted from severe penalty to mitigation of punishment in criminal legislation. The criminal policy of temper justice with mercy should be carried out practically. The function of restriction of criminal law interpretation to penalty power isn't also ignored.