A Study On The Princible Of "Ultima Ratio Of Penalty"

The theory of "ultima ratio of penalty" is a frequent usage in the moderncriminal research, and its theory is influencing the criminal law reform step by step.Undoubtedly, this theory also has a huge impact to China's traditional criminal lawresearch. However, according to China's current situation, this theory is still remote tothe common people, and just few scholars have discussed the basic requirement ofthis theory. There is no comprehensive research on the determining of crime andpunishment to provide a specific and controllable standard. This dissertation willsystematically discuss the theoretical base and value of "ultima ratio of penalty" toinquire the significance of China's criminal policy, criminal legislation and criminaljustice. The preface emphasizes the importance of "ultima ratio of penalty". Besides thepreface and conclusion, the whole dissertation can divide into three parts, altogether36,000 words. The first part discusses the conception and theoretical base of "ultima ratio ofpenalty". The dissertation thinks that this theory embodies the opinion of "caution ofpenalty" in essence. The meaning of "ultima ratio of penalty" means that thecriminal law should be regarded as the last defense to punish the illegal act. If otherlaw can be used to regulate the illegal act, we had better do not use criminal law.Meanwhile, if the light punishment is enough, we should avoid using the severepunishment. The social base of this theory lies in the separation of citizen society andpolitical country, and the theoretical base is the unification of human rights protectionand social protection. The second part discusses the value of "ultima ratio of penalty". The dissertationthinks that it is correct to understand the theory from two sides, namely the scope ofapplication and the degree of application. This theory requires the restriction of thescope of application and lenient of the degree of application. Meanwhile, the authorbelieves that we should take the social development situation, social moral opinion,and the extent of harm into account. And we should use less penalty to get the besteffort to express the spirit of humanity and lenient. The third part discusses the real meaning of "ultima ratio of penalty". Firstly, theauthor analyzes the embodiment of this theory, namely uncriminality and unpenalty.The author comments the meaning to China'e criminal policy, criminal legislationand criminal justice. The dissertation believes this principle can scientifically set upthe criminal regulation aim and mitigate the argument about light punishment andsevere punishment. The author emphases the significance of economic crimelegislation and traditional legislation and believes we should follow the principles ofsuit and coordination. In the end, the author analyzes the criminal justice of thistheory from the aspect of "yanda", namely obeying the policy regulation and doctrineof a legally prescribed punishment for a specific criminal. The last part draws a conclusion about the basic opinions of this dissertation.