Research On Security Measure And Reform Of Criminal Law Of China

The modern theory of security measure was inchoated at the end of 18thcentury, first claimed by the famous German jurist EF·Klein. For the reasonof the prevalence of retribution by criminal classical school, the theory ofsecurity measure was not fully developed. Until the end of 19th century, thedevelopment of criminal positive school provided a chance for thetransformation of security measure from theory to institution. The enaction ofCarl Stooss Draft symbolized that the opinion of punishment was the onlyconsequence of crime had changed, the traditional logic structure of"crime--punishment" was strongly impacted. Thereafter, security measuredeveloped well, both on theoretical study and institutional structuring. In the20th century, security measure prevailed globally. During this period, bothcountries of common law and continental law system accepted and adopted保安处分与中国当代刑法革新问题研究 第 5 页security measure, and made great achievements in preventing crime andguaranteeing human rights. The appearance of security measure indicates the reaction of law to crimetransformed a lot. Therefore, security measure is of great importance in thestudy of criminal law. It was once granted the symbol of humanization,scientism and modernization of modern west criminal law. Security measure,reprieve and parole are recognized as the "three carriages" for therationalization of modern punishment system. Security measure has a widecontent and plenty of disputing issues, belongs to criminal law, and relatesclosely to criminal procedural law, criminal policy, criminology, prisonologyand administrative law. In addition, there are great differences in historytraditions, social systems, ethical cultures and judicial customs, so it is hardto have a good study on security measure. It is generally recognized thatsecurity measure is the whole name for various treated and correctivemeasures which are prescribed by criminal law and administrative law,imposed on persons with no reliable capacity, limited liable capacity andother persons who has equivalent personal fatalness as substitution forpenalty in order to eliminate dangerous condition of the behaviorist, preventcrime and ensure public security. In countries' legislations, taking regard tothe relation between penalty and security measure, there are two claims for保安处分与中国当代刑法革新问题研究 第 6 页security measure system——monism and dualism. The former claims thatthey are the same in nature and unnecessary to distinguish, while the latter,just the contrary, claims to establish two systems. The two both have a lot ofproponents, almost draw in the disputes. The study on security measure in our country began late, and the theoryand institution of security measure was once repulsed which led to itsunsatisfactory studying condition in our country's criminal law circle. Thecurrent criminal law doesn't stipulate security measure explicitly andsystematically except similar measures in related statutes and regulations.How to regulate security measure in current laws is not only an importanttopic in the reform of our criminal law, but also the only way to cater for thereform and development of criminal law of the world. The article first expounds the history of security measure, from theory topractice, draft to institution; then the three principles of security measure:regulated by law, admitted by ethic and according to proportion; explains therelation between security measure and penalty, the disputing focus of monismand dualism and their developments; states the contents of the application ofsecurity measure and personal fatalness; on the base of intensiveunderstanding of monograph on security measure, demonstrates the academicbase of security measure with abundant materials and concludes the保安处分与中国当代刑法革新问题研究 第 7 页category and applicating object of security...