The Establishment And Realization Of Crime Equaling Penalty Principle

Crime equaling penalty principle is the inherent spirit of modern crime law. China established crime equaling penalty principle as one of the basic principles of current PRC Criminal Law in 1997. How to effectuate the values of crime equaling penalty principle carries great significance. An exploration into crime equaling penalty principle is virtually an interpretation of the relationship between two substantive categories: crime and penalty. Introducing the notion that crime and penalty are interknitted and interplayed, this dissertation attempts to find to way to realize crime equaling penalty principle in China on the basis of the research on the relationship between crime and penalty. This dissertation comprises 5 chapters besides introduction and epilogue with a total amount of 33,000 characters. Introduction: briefly introduces the significance for the establishment and realization of crime equaling penalty principle and the consideration of exploring the way to realize the balance of crime and penalty by way of reading the relationship between them. Chapter 1: probes into the theoretical basis of crime equaling penalty principle. This chapter discusses two theoretical basis for the Principle in the neoteric era: retributivism and utilitarianism with a short review on their respective values and defects in theory. In addition, this chapter mentions the necessity of combining retributivism and utilitarianism. Chapter 2: dealing with the establishment of dualistic crime equaling penalty principle. This chapter discusses the precise summary of Art. 5 of PRC Criminal Law, then analyzes the duality of the nature of "crime"and the goal of "penalty". The organic unification of the two elements is the duality of the relationship of crime and penalty, thus establishes the dualistic crime equaling crime principle. Chapter 3: analyzes the realization of crime equaling penalty principle. Based on the analysis of elements, structure and environmental analysis of the crime equaling penalty system, this chapter proposes several evaluation criteria: balance of nature of crime and that of penalty, balance of quantity of crime and that of crime, balance of degree of crime and that of penalty, especially focusing on the interactive relationship between crime and penalty and rule of movement. Realization of crime equaling penalty results from constant interaction and intermodulation between crime and penalty in movement, among which crime is a dominant and decisive factor while crime bears a reverse conditionality function. Chapter 4: explores the dominant role of crime in the realization of crime equaling penalty principle. From the perspective of legislation, general principles of Criminal Law embodies such characteristic in conviction, tdistinction of minor crime and serious crime, kinds of punishment, measurement of crime, etc. Judicial practice encounters more problems. This chapter only attempts to give a brief analysis on the relationship between the principle of individualization of punishment and crime equaling penalty principle. Chapter 5: presents an analysis on penalty's conditionality function in the realization of crime equaling penalty principle. Penalty's conditionality function can be perceived from the development of legislation and the phenomenon of crime from the perspective of statutory penalty. This chapter also touches the issue of "comparison"in Criminal Law. This chapter explains the conditionality of penalty over conviction in judicial practice by way of a specific case. Epilogue: summaries this dissertation with the viewpoint that crime equaling penalty principle realizes in the dynamic movement of crime and penalty.