Research On The Equivalence Between Crime And Punishment Of Confucian Idea

At present,the results of the practice of the principle of adaptation to crime and punishment can not meet the expectations of the public: when the principle of adaptation to crime and punishment is introduced as a practical means,in the face of social reality,because of the existing simple values and practical justice of the public,the public can not get the expected results with the help of the principle of adaptation to crime and punishment.The reason is that when the principle of suiting crime to punishment is applied,the value connotation,value pursuit and cultural soil are gradually far away.This leads to the gap between the practice under the guidance of theory and the public expectation.With the rejuvenation of traditional culture,we may as well take the principle of adaptation of crime and punishment as the starting point,trace back to the Confucian concept of equivalence of crime and punishment in traditional culture,and then explore the shining points in traditional culture to enrich the current principle of adaptation of crime and punishment,and explore the elements or elements of Confucian thought that still need to be used for reference in the current criminal law practice,so as to pursue the goal of "making the past serve the present" and to make the past serve the future In order to make up for the omission of the principle of crime and punishment in current criminal law,and then realize the public recognition of criminal law.In addition to the introduction and conclusion,this paper is divided into six chapters.The first chapter is "the introduction of Confucian concept of crime and punishment equivalent",which mainly lays the basis point of this paper.From the perspective of current law,the western "law" as a reference,there is no "law" in the western context in Confucian concept,because Confucianism is "ethical law".Therefore,in discussing the concept of "the equivalent of crime and punishment" of Confucianism,we should not interpret the Confucian theory from the perspective of "nature",but should examine the Confucian concept of "social" from the perspective of human beings.The scope of Confucian concept should be mainly based on the classical theory of pre Qin dynasty Confucianism,followed by the legal thoughts and related writings of later generations.The Confucianist idea should be based on the theory that conforms to the spirit of criminal law in Confucianism,abandoning the theory of violating the spirit of criminal law in Confucian ideas,and the second is the most basic cognition and value orientation in the current criminal law concept,and the realization of the principle of Confucianist concept and the principle of adapting to crime and punishment has the common value pursuit-maintaining the social order as reference.On this basis,further research and confirm the Confucian concept of crime and punishment equivalent content and value of "existence".Chapter two is the content of Confucian concept of "the equivalent of punishment and crime",further studies the content of the Confucian concept of crime and punishment:Confucius advocated the idea that "punishment" needs "medium","broad","fierce" and "economic";Mencius’ view of "good" and "law" mutual existence;Xunzi’s view of "crime" and "punishment" as "name";other Confucian classics show "cautious punishment" and later generations give it to the people To extend the discussion and implement.This paper studies the theoretical advance in the implementation of the Confucian concept of crime and punishment,that is,the role of "Enlightenment",especially the role of "ritual",and then explains the relationship between the concept of "punishment equivalent" and "ritual".After the theoretical connotation of the concept of the equivalent of the Confucian crime and punishment is examined,the practical contents of the Confucian crime and punishment are further examined: the legislation and the corresponding judicial practice program based on the theory of "heaven" and "Saint monarch" of the Confucianists.Chapter three is the theoretical basis of the concept of the equivalent of the Confucian crime and punishment,further studies and explores the theoretical basis of the Confucian concept of the equivalent of crime and punishment.The Confucian concept of "justice" holds the theory of "newspaper" in the victim of "benefit",upholding truth,safeguarding justice and holding the principle of benevolence and Taoism;in the aspect of "profit" criminals,Confucianism emphasizes "unbearable human heart" and "compassion".The theoretical basis of "crime" in Confucian concept of crime and punishment is: respecting the value of "heaven",keeping the order attribute behind "ceremony" and convicting according to the law.The theoretical basis of "punishment" in the concept of "punishment" in Confucian concept of "punishment" is the Confucian "mean" thought,and then derived from "medium punishment" and "medium punishment" and applied in practice.In Confucian concept of "equivalent" is based on "the world",it ensures that the social value pursuit and ethical pursuit are expressed in the crime penalty equivalent,and also the human feelings can be implemented.In the theoretical basis of Confucian concept of crime and punishment,the theory of "heaven" is the theoretical control of the crime and punishment,and human nature is the theoretical basis of the crime and punishment,and the theoretical value is directed to "no punishment" and "no litigation".Chapter four is "consideration factors of Confucian concept of crime and punishment equivalent",and based on the basic theory of the first three chapters,further discusses how to develop the concept of "equivalent crime and punishment" in practice.First,the criminal punishment can be changed by "emotion",that is,the flexibility of legislation and justice can be realized through "emotion",and then the social life of human relationship and kinship can be taken care of.In Confucian concept of crime and punishment,morality is the assistant of the realization of crime and punishment: "benevolence" is the basic point of the auxiliary of the crime and punishment;righteousness is the value standard of the corresponding auxiliary of the crime and punishment;the "faith" is the guarantee of the behavior quality to realize the corresponding assistance of the crime and punishment.As the basic concept of Confucian crime and punishment,people should adhere to the "people-oriented" and then realize the goals of "serving the people" and "teaching the people".The important way is to show it through the identity of the people.The concept of "punishment and crime" in practice is expressed as maintaining the order of society,that is,to maintain the status of "order" of the long and young,and pursue the harmonious state of social order.Chapter five is the implementation of the Confucian concept of the equivalent of crime and punishment.After the theoretical analysis of the concept of the equivalent of the Confucian crime and punishment,how to carry out the concept of the equivalent of the Confucian crime and punishment in practice is further carried out.The ethical pursuit of Confucian concept of "criminal punishment" applied in practice is to construct "order",which aims to realize the result of social harmony.In the Confucian concept of crime and punishment,law as a common tool in the world,should uphold "justice" to pursue "only punishment for philosophers",and to carry out "emotion" in judicial time.The concept of "equivalent punishment" in Confucian crime is embodied in the consideration of criminal responsibility age,the need of self-defense,the determination of "amnesty" in judicial practice,and the implementation of the system of concealment and keeping and keeping relatives in practice.Chapter six is the contemporary significance of Confucian concept of crime and punishment,and then confirms its contemporary significance after further examination of the concept of the equivalent of the Confucian crime and punishment,so as to achieve the goal of "using the ancient for the present".To introduce the concept of "equivalent punishment" of Confucian crime into the relationship between crime and punishment,we need to break the shackles of "elite legislation" of criminal law and return to the common situation.In practice,we should first embody some genes in Confucian concepts in criminal legislation,such as "order","human feelings",etc.,to realize the three-dimensional value interaction between criminal law,human and society.In addition to adhering to the principle of legality of crime and punishment,we should pay attention to the important value elements of conviction in Confucian concept,such as filial piety.In the judicial practice stage,we need to realize the transformation of sentencing thinking,that is,to avoid too much universalism and rule of sentencing,and to consider more particularism and moral pragmatism.For the acts that should not bear criminal responsibility but constitute a crime according to public common sense or moral judgment,the qualitative evaluation of whether it is not allowed by criminal law can be given.In the case of conviction,it is limited to reduction as appropriate,and no case of impunity can occur.In the process of judicial judgment,we should attach importance to the existing cultural heritage,especially the value guidance of cases,in order to improve the evaluation function of the relationship between crime and punishment.After introducing Confucian punishment,we need to construct an effective value evaluation system.In this evaluation system,we should pay attention to the value reconstruction of the criminals,improve the channel of social relations restoration,in order to implement the forgiveness in social ethics and show the forgiveness in the crime and punishment.At the same time,we should pay attention to the social public identity,so that the crime punishment can absorb the cultural heritage and construct the value standard,so that the two elements of "crime" and "punishment" can be corresponding,and the value of its essence can be realized.At the same time,it can realize the response to the needs of social public identification,construct the foundation of social public identification of criminal law,so as to improve the value universality of criminal law,and then become the value benchmark of the members of the society and improve the social support of criminal law.In short,the deep study of the concept of Confucian crime and punishment and try to "use the past for the present" is the need of cultural "root",the call of Chinese and western use,the need of cultural rationality,and the need of national psychology.Only by realizing the "use of the past for the present",can we improve the value universality of criminal law,and then improve the social support of criminal law,and finally show cultural confidence.