On Power Of Penalty And Its Restriction

The dissertation is in four chapters, with 35,000 words in total.Chapter One introduces different concepts of the power of penalty in the academic field,based on which the writer puts forward her own opinion from the aspect of therelationship between the power of penalty and the state power. The writer believes thatthe power of penalty is a special state power with its specialization, enforceability,particularity and extensibility. The position of state power in political philosophy affectsthat of the power of penalty in the philosophy of criminal jurisprudence. Who holds thestate power determines the interest selection of the power of penalty. As time moves on,reducing the interference of the state power in civil rights and substituting anomnipotent government with one with limited power has become a new module of therelationship between power and rights. The restriction on the power of penalty isnaturally a part of the trend. It is particularly necessary to put restrictions on the powerof penalty in China where people have a highly developed notion of state power.Chapter Two gives a detailed description and analysis of the two theories of the originof the power of penalty, namely, the theory of god-given power and that of contract, andof the five theories of the base of the power of penalty, namely, the theory of purejustice, that of necessity, that of order, that of social defense and that of compromise.The writer believes that the theory of people's democratic dictatorship, which developsout of Marx's theory of class struggle, is a practical theory of sovereign rights beingwith the people, because the power of penalty cannot have the legality of force withoutthe enfeoffment and authorization of rights from the people. However, this has beenlong viewed as bourgeoisie ideology and ignored in the mainstream ideology of highpoliticalization and state-orientation, thus leading to the present unlimited status of thepower of penalty.Chapter Three analyzes the different soils that breed the theory of the power of penaltyin the West and in China. In the West where people hold a well-developed concept ofcontract, the birth of nation is considered the result of contract, which, though againstreality, provides justification for people using civil rights to limit the state power ofpenalty. Natural laws are regulations on the relationship between power and rights,providing the legal guarantee for the restriction of the power of penalty. In conclusion,the core of western culture is the culture of contract and the culture of rights, having agreat influence on the culture of criminal laws. This is not the case in China, whereabsolute monarchy and centralization of authority were the political tradition andcriminal laws were traditionally the tool of control for the ruling class. This traditionalideology cannot be changed in a short time.In Chapter Four, the writer firstly analyzes the justifiability of the existence of thepower of penalty in a nation from the aspects of the retribution and utility of criminalpenalty. The conclusion is that the significance of the power of penalty lies in itsproviding individual citizens with the guarantee to prevent harms to their rights fromothers and creating an orderly atmosphere for the state to effectively perform itsadministrative function. Secondly after examining the present situation of the power ofpenalty in China, the writer concludes that the deterrence with heavy penalties has neverdisappeared in China's criminal law practice. "Strike-hard" campaigns and thelegislation of the existing criminal laws are both evidences of that. Finally, from theaspects of the significance of the cultivation of the concept of contract and the spirit ofcontract in a civil society and of the division of state politics and the private sectors, thewriter probes the practicability of fostering social factors to restrict the power of penaltyin developing market economy and quickening the formation of a civil...