Research On The Heavy Punishment Rules Of Criminal Law

Penalty mitigation is an objective development trend of penalties all over the world,and it is also a value concept that my country’s criminal legislation and judicial practice actively implement.However,the prevalence of severe punishment rules in my country’s "Criminal Law" and judicial normative documents and the continuous expansion of the scope of application fully demonstrate the tendency of severe punishment in my country’s criminal law.Under the realistic background that the overall penal structure of our country is becoming heavier,even if the legislative existence and judicial application of the heavy punishment rule facts will bring positive effects such as order and safety,public recognition,etc.,its "tool legitimacy" cannot justify it."The legitimacy of norms" cannot conceal its potential system risks and practical application problems.At the legislative level,the expansion of heavy punishment rules will inevitably intensify the trend of heavy punishment in my country’s penalty structure,and induce judicial practice to continue to move toward the misunderstanding of heavy punishment,making it difficult for the development of light and mitigation of punishment in my country,and leading to a large amount of inclined allocation of judicial resources to the level of penalty enforcement..At the same time,the emphasis on the social governance function of the criminal law and the focus on social governance effects will not only prove the legitimacy of its legislative universality,but will also cause individuals to bear more arduous social governance risks;at the judicial level,severe punishment rules The expansion in the current judicial normative documents has already appeared in violation of the principle of statutory crimes and punishments,which will definitely hinder the requirements for the construction of a country under the rule of law.Moreover,the current judicial application of severe punishment rules is faced with many micro-issues such as unclear applicable standards,overlapping applicable rules,and indirect punishments,which have become unavoidable topics in practice and theoretical research.Therefore,by observing the external facts of legislation and justice,exploring the operating rules and internal logic of the severe punishment rule,examining the practical problems faced by its legislation and judicial practice,and rationally thinking about the severe punishment of the criminal law under the current normative system.The standardized operation of the rules is imperative.The full text of the study of severe punishment rules totals more than 220,000 words,which is mainly divided into five parts:Chapter One is an overview of severe punishment rules.The universal existence and expansion of the severe punishment rules are the result of multiple reasons in the current criminal law practice,such as the concept of severe punishment,legal instrumentalism,criminal law functionalism,and my country’s sports crime governance model.The heavier punishment rules are mainly specific,mandatory and purposeful.The heavier punishment rule refers to the provisions of the Criminal Law and judicial normative documents.Based on various subjective and objective facts that highlight the high degree of social harm of the crime or the high degree of personal danger of the offender,the offender shall be sentenced to relatively heavier penalties.Sentencing rules.It is substantially different from related concepts such as aggravated punishment,aggravated offense,and selective punishment.Under the three practical modes of legislation leading mode,judicial leading mode,and judicial self-created mode,the heavy punishment rule has a broad normative foundation in my country’s criminal legislation and judicial practice,and presents the interweaving and expansion of legislation and justice,and the rigidity and flexibility of legislative provisions.The characteristics of imbalance,manifestation and invisibility go hand in hand.The second chapter examines the issue of severe punishment rules.From a legislative perspective,the legislation on heavy punishment rules is based on the concept of risk prevention,but general prevention cannot provide a sufficient justification basis for reasons such as the effectiveness test dilemma.The emphasis on risk prevention can easily lead to the alienation of the social risk distribution structure,and there are problems This induces the hidden tendency of judicial heavier punishment.At the same time,due to improper use of legislative methods and technologies,there are obvious shortcomings in the construction of heavy punishment rules,such as insufficient typology and lack of clear expression.Its excessive expansion will not only aggravate the strictness of my country’s penal structure,but also cause the lack of judicial resources.Reasonable configuration.At the judicial level,the expansion of severe punishment rules in judicial normative documents has already revealed the issue of judicial power overstepping legislative power,which will definitely hinder the rule of law in a country under the rule of law.Moreover,the severe punishment rules serve the inconclusiveness and uncertainty of sentencing issues,making its specific legal application face many micro-issues such as unclear applicable standards,overlapping applicable rules,and indirect punishments,which severely restrict the realization of the standardization of sentencing.The third chapter is the theoretical basis of the severe punishment rule.The legitimacy of severe punishment depends on the social harm,personal danger and general prevention of the crime.On this basis,the rationality and legitimacy of the severe punishment of the offender should be examined.The objective harm of behavior in social harm and the corresponding subjective degree of malignancy of the perpetrator are the basis for realizing the justice of penal retribution and the source of legislative and judicial legislative punishment for severe punishment.Personal danger is committed to special crime prevention,which is not only the theoretical basis for the legislation of heavy punishment rules related to recidivism,special recidivism and drug recidivism,but also a factor that must be considered in the judicial application of all heavy punishment rules.The general prevention of crime and criminal legislation have a natural affinity.The use of severe penalty deterrence to achieve negative general prevention and the use of severe penalties to achieve positive general prevention is to shape society’s universal normative beliefs,which are important theoretical foundations for the legislation of severe punishment rules.The fourth Chapter is the Legislative control of severe punishment rules.The emergence of the severe punishment rule is promoted by the ideology of severe punishment,the concept of functionalism of criminal law,and the sports crime governance model.Legislative restrictions on severe punishment rules bear the positive function of suppressing severe punishment,which will help promote the scientific nature of criminal legislation and promote the coordinated operation of legislation and justice.At the level of legislative conception,the legislative concept needs to be changed from the legislative restriction of the heavy punishment rule: to realize the conception of national rights criminal law to civil rights criminal law,promote the implementation of the idea of criminal law objectivism,prevent the concept of criminal law instrumentalism from showing too much,and treat the general preventive effect with caution.At the legislative technical level,measures such as substitution of qualification penalties based on the identity of the actors and the typified improvement of the severe punishment rules can be adopted to realize the reasonable configuration and effective restrictions of the severe punishment rule legislation.In addition,in view of the inconsistency between the scope of application of judicial interpretation and the principle of legally prescribed punishments for crimes and punishments,and there are requirements for the construction of the rule of law,it should be “legitimate” in terms of substantive content and formulation subjects in accordance with the Constitution and the Legislative Law."Review and adopt different adjustment strategies.The fifth chapter is the normative application of severe punishment rules.Based on the justification of the severe punishment rule,the judicial application of the severe punishment should follow the three major principles: "formal legality and substantive cause coexist and determine legality","objective harm and subjective malignancy are consistent to determine responsibility",and "criminal personal danger is objectively determined and prevented".in principle.In practice,the basic responsibility penalty should be normalized as the starting point for heavier punishment,and the punishment is severely determined below the statutory maximum penalty.However,when the necessity of crime prevention is reduced or missing,the severe punishment does not need to maintain the mechanical lower limit.Moreover,judicial practice should divide the severe punishment rule into retribution and preventive punishment based on the legitimacy of the penalty,and according to the different substantive functions they undertake,the multi-scenario competition should be classified as appropriate.At present,the criminal law is undergoing a shift from individual punishment and correction to overall risk prevention and control.Simply punishing individuals and preventing crimes has little effect in the current society and faces questions of legitimacy.However,overall risk prevention and control is pursued because of its proportional effectiveness.It has become the mainstream trend.Therefore,in the process of the development of criminal law,the effective restriction of severe punishment rules is not only an inevitable requirement for restricting severe punishment,but also an important measure for the scientific layout and modern development of my country’s penal structure.However,just like the long and arduous process of restricting severe punishment legislation and practice,restricting severe punishment rules will also be a complicated,systematic,and long-term project.In the context of the modernization of the national governance system and governance capabilities,how to follow the rule of law and restrict severe punishment rules is bound to become a question worth pondering.Under such an objective situation,systematically studying the severe punishment rules,by revealing the problems of the severe punishments,seeking the legislative control path of the severe punishment rules,and thinking about the standardized application methods of the severe punishment rules,is to respond to the needs of legislation and judicial reality.It is also the focus of the study of the theory of punishment and the actual field of value.