On The Relation Between Criminal Policy And Conviction And Measurement Of Penalty

Conviction and measurement of penalty are two basic links in the process of judicial activity . Correctness of declaration of guilty is the prerequisite and foundation of accuracy of measurement of penalty. Measurement of penalty is the expansion and continuity of the process of declaration of guilty. It is the basic demand for criminal judiciary that penalty should deserve the crime. Therefore, it can be concluded that the purpose of criminal judicial activity is to declare the guilty correctly and measure the penalty accurately. Criminal policy is the policy that is used as the base of declaration of guilty and measurement of penalty. Because criminal judiciary itself is not the purpose but the means of achieving the purpose. That is to say, criminal judiciary is a kind of policy. Therefore , law-making and law-applying ,crime and penalty should base on the criminal policy. and should be checked whether they meet the requirement of criminal policy. Those that go against the criminal policy should be regarded as bad legislation .and the judgement and execution without the guiding of criminal policy are also the bad ones .Criminal policy provides us the standard of judging the current laws to explain to us how to apply laws and how to perceive the current laws based on the purpose of the policy. In this sense, we can say that the norm of criminal law is the formalized tool of rationality ; criminal policy non-formalized purpose of rationality. Criminal policy plays a guiding role in enforcing criminal law norm. However , this situation is relative but not absolute. In modern society, it will never be allowed to abuse penalty to the actor beyond the limit of specification and standard that are clearly defined in criminal law. But the criminal policy we have followed in the past decades defined the criminal law as "the handle of a knife" and "a machine of dictatorship". Under the guide of such criminal policy, more attention has been paid to suppressing and punishing criminals rather than preventing crime. Too much emphasis has been put on the dictatorship function ,so the crime-controlling mainly depends on government. That is to say , government ,esp. the judicial department plays main role in crime-controlling. The means adopted by government is to apply and enforce the national judicial power. The function of criminal law is to maintain the social order without considering the protection of human right. There is no doubt in China that the persuit of super steady social order is at the cost of citizens' rights and freedom. The lessons drawn from judicial practice in the past decades indicate that the function of the criminal policy can't be expanded excessively . If criminal policy acts as both the theoretical guide and the direct standard of judging the specific criminal cases in place of criminal law, the result will be false doctrine and the punishment of criminal case is unable to standardize. With the establishing of market economy system and its further developing , the process of ruling by law has been greatly accelerated and the awareness of human right protection has been aroused. One big problem we are facing now is how to restrain the power of penalty in the criminal judicial course in order to further strengthen human right protection and realize the benign operation of function of criminal law. The above-mentioned big problem can't be solved without the renewal of idea of criminal policy. In this paper ,the interactive relationship between criminal policy and criminal judiciary is studied . In chapter one, the definition of criminal policy and its legal principle are discussed .Generally,the idea of the criminal policy's evolvement has experienced such a process: punishment ---correction-----prevention .In chapter two ,the relationship between criminal policy and conviction is discussed.It is generally considered that constitutive elements of crime can highly embody the requirement of a country's criminal policy .In judicial practice, whether the po...