| Individualization of penalty is an idea advocated by the modern criminal school,which takes personal danger theory as the core,individual prevention as the goal and individual justice as the fundamental value.The principle of individualization of penalty is of great significance to correct the strict doctrine of legality.With the mutual reference and integration between the classical school of criminal law and the positive school of criminal law,the principle of individualization of penalty in the modern sense is no longer the earlier absolute individualization of penalty,but more as the compromise of the two theories,which has a profound impact on the modern criminal law theory and criminal legislation of all countries in the world.Therefore,systematic research on the principle of individualization of penalty is of great significance to the development of current criminal law theory,the reform of criminal legal system and judicial practice of our country.Structure of this paper presents the theory and practice of two aspects:in theory,mainly through the study thinking of relation,from the concept of principle of individualization of penalty,combing the evolutionary history,demonstrates the value of the existence of individualized punishment principle,reveals the core of principle of individualization of penalty: personal danger,to clarify the relationship between principle of individualization of penalty and the principle of compatibility of crime,responsibility and penalty.In practice,through the enrichment and deepening of the aforementioned theory,and on its basis,combined with the current situation of China’s criminal justice and law enforcement,this paper tries to provide some suggestions and ideas for the better implementation of the principle of individualization of penalty in sentencing and execution.Therefore,the research of this paper is manifested as the structural model from basic concept to principle proposition,from theoretical framework to practical application.In this paper,in addition to the introduction,research conclusions and references,the text is divided into six chapters:Chapter one: The overview of the individualized penalty principle.Mainly expounds the meaning and historical evolution of the principle of individualization of penalty.It should be said that the concept definition of the principle of individualization of penalty in China’s current academic circle is based on the different positions of personal danger,personal situation,retribution and prevention of the doer,and the understanding of its concept is also "cut continuously,reason is still confused".The reason lies in the failure to grasp the characteristics of penalty individualization principle from the perspective of development.As a concept of penalty,the principle of individualization of penalty originated before the modern school of criminal justice,formally formed in the period of modern criminal justice school,and gradually developed into a part of modern rational penalty theory.However,no matter how the form has changed,the individualization of penalty is based on the position of social standard,aiming at realizing the special prevention of penalty,focusing on the investigation of the doer,and advocating the diversification of penalty application and enforcement measures.The concept of penalty individualization should be distinguished from the related terms of sentencing individualization,penalty concretization and penalty personalization.Chapter two: The value of the individualized penalty principle.The significance of the individualized penalty principle is explored from three perspectives: individual justice of penalty,special prevention of penalty and benefit of penalty.Due to the difference in the degree of freedom of will between people,the causes of crimes and other factors,it is determined that it is impossible to achieve individual justice for the offender only by relying on the principle of the adaptation of guilt and punishment,and should be relied on the principle of penalty individualization,which based on the full investigation of the personal danger of the offender.At the same time,based on the punishment of utilitarian position,whether individualized punishment theory advocates to depriving criminal crime objective conditions,or give the subjective psychological deterrent,especially its position the diversity of punishment measures so as to adapt to the different situations,to some extent,it coincides with the special prevention function of penalty.As for the relationship between the justice of individual penalty and the special prevention function of penalty,the special prevention of penalty should take the justice of individual penalty as the premise and basis,and the justice of individual penalty should take the special prevention of penalty as the purpose.The relationship between the two is dialectical unity.Of course,the principle of individualization of penalty advocates that appropriate penalty measures should be chosen in the application of penalty to suit the personal danger of the offender,and penalty execution measures should be adjusted in time according to the change of personal danger.Therefore,to realize the benefit of penalty is its due meaning.Chapter three: Principle of individualization of penalty is on the basis of personal danger.The study of the principle of individualization of penalty cannot be separated from the discussion of the term personal danger.The definition of personal danger and its position and function in the theory of criminal law can provide a scientific way for the status of the principle of individualization of penalty.However,if we do not understand the concept of personal danger based on the differences in research fields,research objects and research methods between disciplines,it is very likely to fall into the error of methodology.The definition of personal danger in criminal law should be distinguished from that in criminology,and the meaning of personal danger in criminal law can only be limited to the possibility of recidivism.Moreover,the relation between personal danger and social harmfulness and subjective malignancy are related and distinguished from each other,which has the value of independent existence.As for the position and function of personal danger in the theoretical system of criminal law,it is believed that personal danger has no function in conviction and can only be limited to the measurement of penalty.The biggest significance is to promote the formation of penalty individualization.The ways that personal danger affects the discretion of penalty are as follows: when personal danger is greater and it is difficult to reform,heavier penalty and longer reform should be applied;On the contrary,if the personal danger is small,easy to reform or there is no personal danger,it is applicable to a lighter penalty and a shorter period of reform,and even can not be executed or exempted from punishment.In addition,personal danger plays an important role in the execution of death penalty,commutation and parole.Chapter four: The relationship between the principle of individualization of penalty and the principle of guilt and punishment are commensurate.As for the relationship between the principle of individualization of punishment and the principle of adaptation to punishment,there are several theories in the theoretical circle,such as the theory of substitution,the theory of exclusion,the theory of inclusion,the theory of subdivision,the theory of parallelism.Because of the misunderstanding in the theory and practice of our country for a long time,the position of the principle of penalty individualization is always ambiguous.Based on the retribution doctrine of theoretical basis of the adaptation to punishment,and according to the philosophical theory of the unity of opposites,the penalty purpose of merger and justice value of conflict and fusion between freedom and order,etc.,put forward the theory of cross point of view,and that the two should learn their essence and discard its dross,form the relations of dialectical unification.As for the position of the principle of penalty individualization in China,this paper holds that the principle of penalty individualization should not be limited to a principle of sentencing,nor should it be elevated to the status of the basic principle of criminal law,the individualization of penalty should be regarded as a principle of penalty,which is applicable to the penalty discretion and penalty execution two stages.Chapter five: The realization of the principle of penalty individualization in sentencing.This chapter mainly discusses the realization of the principle of penalty individualization in penalty discretion.The implementation of the principle of individualization of penalty in sentencing has important value,which can promote the individual justice of penalty and realize the purpose of penalty prevention.However,through analyzing the current situation of the individualization of penalty discretion in China,it is found that there are many problems in substance and procedure: in substance,the current legislation and judicial practice in China violate the spirit of the individualization of penalty theory.For example,the absence of the content of individualization of penalty in the current sentencing principles,the reform of standardization of sentencing has exposed the defects deviating from the concept of individualization of penalty.In terms of procedure,the main performance is the absence of personality investigation report system in our country,such as the implementation of the main body of sentencing investigation report chaos,the scope of application of sentencing investigation report system is relatively narrow,the content of sentencing investigation report is not scientific,and is threatened by the traditional evidence theory.In this regard,in terms of substance,the content of the principle of individualization of penalty is clarified in the sentencing principles of our country,and the ecological balance between the standardization of sentencing and the individualization of penalty is sought.Under the premise of the standardization of sentencing,the individualization of penalty is fully and properly considered,the responsibility penalty and the preventive penalty are properly handled,and the discretion of judges is standardized.In terms of procedure,we should improve the current system of sentencing investigation report in China,including unifying the subject of the report,expanding its scope of application to all,adopting diversified methods of sentencing investigation,and identifying the investigation report as one of the statutory evidences of the criminal procedure law.Chapter six: The realization of the principle of penalty individualization in execution.This chapter mainly discusses the realization of the principle of penalty individualization in penalty execution.The individualization of penalty execution is of great value in meeting the requirements of penalty punishment,promoting the correction of criminals and scientific execution.However,there are still three problems in the process of individualization of penalty execution in China,such as the classification of criminals,the treatment of criminals and the change of penalty execution with commutation and parole as the main contents.On the basis of clarifying the principles and methods of criminal classification,the concrete measures of criminal classification should be improved.As for the treatment of criminals,it should be carried out mainly from the horizontal and vertical dimensions: the horizontal dimension mainly focuses on the three elements of supervision,labor and education.In the vertical dimension,efforts should be made to construct a "progressive system" treatment system with Chinese characteristics.Regarding the measures to change the execution of penalty,we should focus on the reform of parole system based on the progressive treatment system,strictly limit the scope of application of sentence reduction,and construct supporting facilities mainly based on parole and supplemented by sentence reduction. |
