Research On Several Questions About The Function Of Criminal Law

The function of criminal law is a basic problem in criminal law, occupiesa very important position in criminal law, but the scholars of our country havenot carried through research on it in accordance with its position for a longtime, cause the research on criminal law of our country to be very difficult togo down deeply further under the present state. So, the deep discussion of thefunction of criminal law will undoubtedly be important for promotion of thetheory of criminal law of our country.The whole article is divided into three parts: preface, main text andconclusion.The part of the preface has mainly recommended the position of thefunction of criminal law in the study of criminal law, current situation studiedby the scholar in our country and its important meaning studied correctly andsome imaginations which the author study about this question.The main text includes three chapters as follows:The first chapter is the summarization of the function of criminal law. Inthis chapter, the author has mainly defined the concept and analyzed thecharacteristics of the function of criminal law. The author has summed upvarious kinds of views of the concept of the function of criminal law beforedefining it. It can be seen from the concept what has been defined by thescholar in our country that the dispute exists as follows: First, whether thefunction of criminal law can equate with the task of criminal law; Second,whether the function of criminal law can refer in particular to the positive roleof criminal law; Third, whether the function of criminal law can include theeffect of criminal law; Fourth, the function of criminal law embodies in whichaspect and how it reflects. After analyzing these dispute questions, I think, thefunction of criminal law refers to every system of criminal law, stipulate asone organic whole realistically or possibly play positive role in the course ofoperating. After the concept to the function of criminal law is defined, theauthor continues to analyze the characteristics of the function of criminal law,and thinks that the function of criminal law can mainly have the followingseveral characteristics: sociality, level, two-way, objectivity, limit andpositivity, and has carried on serious analysis to these characteristics of thefunction of criminal law.In the chapter, the writer has mainly probed into the noumenon of thefunction of criminal law. In this chapter, before analyzing the content of thefunction of criminal law, the writer has summed up the view of the content ofthe function of criminal law according to the materials grasped by the writer,through summing I find that the view about the content of the function ofcriminal law exists as follows: theory of two function, theory of three function,theory of four function, theory of five function and theory of more than fivefunction. The writer has carried on very exhaustive analysis and appraisal tothese theories about the content of the function of criminal law, then,according to the concrete regulation of the criminal law of our country, pointedout in using the foundation of the rational theory about the function of criminallaw for reference that the function of the criminal law of our country displaysthree functions in two aspects, namely the function of the criminal law of ourcountry can be divided into such two aspects as function of norm and functionthat keeps the social order, the function that keeps the social order can furtherbe divided into the function of protection and the function of guarantee. It canbe seen From the display of the contents of the function of our criminal law ofour country that there is not conflict between the function of protection or thefunction of guarantee and the function that keeps social order, because whetherthe function of protection or the function guarantee is the embody of thefunction that keeps social order .The conflict exists between function ofprotection and function of guarantee. The writer probes into the function ofnorm, the function of protection and the function of guarantee further on thisbasis. The writer thinks that function of norm shows such two aspects asfollows: Namely to discipline the conduct of the actor and the conduct of thejudicial staff who represent national power. The content of the function ofguarantee of criminal law is shown as human rights or freedom of guarantee,target of guarantee include the offense and the common people. The writer hasalso analyzed the embodiment of the function of the guarantee of the criminallaw of our country. In order to realize the function of guarantee of criminallaw conscientiously, I point out that we must ensure the interpretingconclusion in accordance with the principle of the possible range of predict ofpeople during the process of interpreting criminal. I think that the content ofthe function of protection of criminal law includes such two aspects asprotecting benefit in law and maintaining social ethics. We must choose thefunction of guarantee prior to the function of protection, if we can not assortwith the relation between them when there are conflicts between the functionof guarantee and the function of protection, because it is the demands of ruleof law and the demands of civil society.In the third chapter, the writer has mainly carried on realistic...