The Justifiable Foundation And The Realistic Way To The Lightness In Punishment

With a general survey on the evolution of criminal law around the world, the reformation of criminal law is advanced in the directions of civilization and humanity. Generally, punishment is moving from cruelty to lightness, and light punishment has already become the orientation of development of criminal penalty in various countries. As a trend of penalty development, light punishment has pointed out a direction for the criminal law reform, promoting the further development of criminal law. As a kind of criminal policy, the spirit of light punishment runs through the whole process of criminal legislation and criminal judicial practice, making the penalty of various countries generally show the trend of lightness. Light punishment embodies the modesty of criminal law in connection with the range of penalty, of which, it implies the ideas of"prudence in punishment"and"modesty in punishment", namely on the basis of effective controlling the crimes, bring the application of penalties down to the minimum limit. Strongly influenced by the traditional legal culture, and out of the inability to control the realistic social security, the severe punishment thought still occupies a major position in the penalty system of our country. In the majority's view, light punishment is nearly a pronoun of"Giving a loose to crimes", suggesting light penalty will inevitably weaken the deterrent force of penalty, causing the surge of crimes in quantity, thus shaking and impacting the existing good civil order. In order to eliminate the doubts and denials to the thought of light punishment, the author, on the basis of previous research results on the light punishment, tries to clarify the value of light punishment contains, seeks the legal rationality and social foundation supporting the thought of light punishment, and explores a route to realize the lightness of punishment between the ideal and reality. This thesis contains 37,000 characters in total, and is divided into four parts altogether, except the foreword and conclusion.In the foreword, the author summarizes the thoughts of light punishment originated by western jurists in the criminal fields, point outs the tendency and historical origin of severe punishment existing in the values of punishment in our country, and makes brief explanations on why choose the topic of light punishment as the thesis as well as on the purpose and meaning of the thesis.Chapter one is about the differentiation and analysis on the concept of light punishment. This part, through the comparison and analysis on pairs of concepts, such as tendency of light punishment and light punishment, light punishment and moderation, light punishment and extremely light sentence, light punishment and decriminalization, depenalization, generally reveals the connotation of light punishment. According to the opinion of the author, light punishment not only refers to a development trend which makes punishment lighter, but more important, it is a criminal tactic using lighter penalty to realize the best effect of penalty. The author thereafter proposes several standards for appraising, weighing the orientation in development of penalty, points out that the trend of light punishment is a comprehensive assessment on the orientation of criminal policy of a country, through survey on the allocation, application and structure of penalties in the country.Chapter two is about the review and comment on lightness or severity of penalties in China. In the first part, the author reviews the lightness or severity of penalties in China from the aspects of criminal legislation, criminal justice and criminal policies, therefore, draws a conclusion that the penalty structure of China still maintains a severe punishment structure, and severe punishment are widely applied in the judicial practices of China. Making comparison vertically or horizontally, the present penalty system in China is comparatively severe in general. In the second part, the author makes comments on the trend of severe punishment, and suggests that the severe punishment policy may possibly control crimes and stabilize social orders in a short term, but excessive stress on the deterrent effect of penalty and regarding penalty as the only means to prevent and control crimes, will be more harms than benefits in a long run.Chapter three is about the legal rationality and social foundation of light punishment. In this part, the author expatiates on the legal rationality of light punishment from the views of the humanity underlying criminal penalty, relativity of crimes, complexity of causes of crimes, limitation of the deterrent force of criminal penalties. And then, the author probes into the social foundation of light punishment from the aspects of history, politics and economy. It is mainly to offer a proper and justifiable basis for light punishment.Chapter four is about the means to realize the lightness in punishment, which is the core of this thesis. This thesis therein proposes an important viewpoint that"lightness"itself can not cover all meanings, that it shall maintain the normal functions of penalty and effectively control crimes, while gradually lightening criminal penalties. For that reason, this thesis proposes to explore and seek the means of realizing the lightness in punishment from the aspects of legislation, justice and concepts, and thus create a favorable environment for realization of light punishment in China.As a conclusion, the author summarizes the basic viewpoints raised and discussed in this thesis.