The Human Rights Protection On Criminal Law

The criminal law is important to the human rights protection because ofthe pursuit of justice. About the proposition of "the human rights protectionon criminal law" we deeply discuss the proper role of the criminal law inhuman rights field. It belongs to "the criminal law based on human rights".The whole article is divided into three parts: preface, main text andconclusion.The part of the preface mainly introduces the original idea, the keypoints, the situation of studying and the main standpoints.The main text includes four chapters, which are as follows:In the first chapter we define the concept of the human rights protectionon criminal law. In this part, after analyzing many different discussions ofthe definition of human rights, the author reveals the essential characteristicsof the definition of human rights. The article points out the should-be andactuality of human rights, the absoluteness and relativeness of human rights.In the should-be meaning, human rights are one of moral rights at first,which expresses the people's request for the perfect status. But thefulfillment of the should-be human rights depends the institution. Thus weshould change the should-be human rights into the actuality of human rights.No matter on the value or the subject and contents of human rights, humanrights are absolute. We can not deny the absoluteness of the human rightsvalue and have to confess the relativeness and diversity of human rights.The diversity of human rights is based on the universality of human rights.Then from the relations between human rights and laws,we generalize thedefinition of the human rights protection on criminal law, which is that thecriminal law should protect all the citizens'rights on the standard of theshould-be human rights through actively exercising the criminal penaltypowers and negatively confining the criminal penalty powers.In the second chapter we analyze the essence of the human rightsprotection on criminal law. In this chapter, we find the essence of the humanrights protection on criminal law in the constitutional and theoreticalfoundation. Firstly, the author analyzes the constitutional foundation. Thefundamental spirit of the constitutional law is to guarantee human rights andrestrict the state power and the human rights protection on criminal law isaccording to it. Secondly, the author stands for the idea that no matter whatis the concept of criminal law, the value of criminal law, the purpose ofcriminal law or the enginery of criminal law provides the theoretical basisfor the human rights protection on criminal law. From the view of criminallaw of state authority to the view of criminal law of citizen rights, to theview of criminal law of human rights, the criminal law of human rightsprovides the idealistic basis for the human rights protection on criminal law.The social justice, public order and personal freedom are the fundamentalvalue of the criminal law. They all relate to the human rights protection oncriminal law closely. We critic this theory which stands for taking thecriminal law as the tool of political domination. We point out the purpose ofcriminal law should be to protect human rights. The enginery of criminallaw is directly important to the human rights protection on criminal law.This article takes the human rights protection as the nuclear enginery ofcriminal law and the social protection as the derivative enginery of criminallaw.In the third chapter we discuss how the criminal law protects humanrights. In this chapter, we only discuss the way of the legislation ofsubstantive criminal law. Firstly, we point out the criminal law should bemade by the principles as follows the democratic principle, theconstitutional principle and the human rights principle. Secondly, in thearticle the author expounds the significance of the basic principles ofcriminal law for the human rights protection. The principle of legal crimeand punishment, the principle of equality and the principle of crime beingcompatible with punishment are basic principles of criminal law. Theimplement of the basic principles in the legislation is very important to thehuman rights protection on criminal law. In the third and fourth part of thischapter, we demonstrate the concept and constitution of crime separately inlaw and their function. The concept of crime should be stated in criminallaw so that all citizens can realize the characteristics of the concept of crimein whole. Further more, the general and specific elements of crimeconstitution should be stated in criminal law in order to make all citizensknow crimes more clearly and provide more explicit standards for judicialorgan. So it benefits the human rights protection on criminal law. At last, weanalyze the method and content of the specific provision's articles in thehuman rights protection. The citizens' legal rights are protected in thespecific provision of criminal law by two means. The direct way is thatcriminal law directly protects citizens' rights by taking the act that seriouslyviolates individual rights as crime, the other is that criminal law indirectlyprotects citizens' rights by taking the act which seriously violates the stateinterests and social interests as crime.The fourth chapter is about the perfection of legislation in the humanrights protection on criminal law. In the first section of this chapter, we pointout and analyze the legislative lack of the criminal law in effect in thehuman rights protection. Firstly, for the flounce of the traditional view ofcriminal law, we don't pay much attention to human rights. There is a issueof the order of the criminal classification in the specific provision. "Crimesof Endangering the State Security", "Crimes of Endangering PublicSecurity" and "Crimes of Undermining the Socialist Market EconomicOrder" are put the first three chapters of the Criminal Law of the People'sRepublic of China. Although it is the only formal issue, it reflects thevaluable orientation of our criminal law in some degree. Further more, somefundamental citizens' rights can not be protected by our criminal law.Except for these, on the one hand, some rights are protected by our criminallaw such as the freedom of speech, on the other hand these rights are limitedirrationally. Secondly, The principle of legal crime and punishment isn'tcarried out in our criminal law thoroughly. One issue is that some crimescan not be punished according to the criminal law in effect. There are someissues in the certainty of our criminal law. At last, there are somedeficiencies in our penalty system. In the second section of this chapter, wemake some suggestions to perfect the criminal law in effect in the humanrights protection. The author puts forward four proposals by the standard ofhuman rights protection. We should optimize the criminal system of thespecial provisions, strengthen the certainty of the criminal law, make the lawmore strictly in order to protect the citizens' fundamental rights better andreform the penalty institution so that it will be more rational and humane.The part of conclusion mainly summarizes the whole article, pointingout the unfinished matters and the direction of research in the future.