Discussion About The Restraining Criminal Law

In the thousands of years of Chinese traditional culture, "heavy sentence" ideological has entered into the blood of the Chinese nation. When the country was in nationwide disorder, heavy sentence ideological would come out and was executed in actual judicial practice.However, the policy of heavy sentence didn't bring positive results to the law-and-order situation, might even play a negative role. As the times progress and society advances, the human values and criminal law civilization are tending to rational. People gradually reflect on the weakness of heavy sentence ideological and willing to explore a new route. Thus the restraining criminal law has been taken more seriously by both Chinese and foreign jurists and embodied in legislative and judicial practice of world countries. The theory and practice of the restraining criminal law will further transform the function of the criminal law to better protect the human rights and make an important role to the construction of the constitutional society.The discussion of this thesis covers the aspects of the historic origin, elaboration on the legal principles, social basis, representation forms, and actualization channels of the restraining criminal law, each part of which will combine with the existing problems of Chinese criminal legislation, judicatory and law execution. The lessons drew from Chinese history and experiences are put forward in the macro point of view in the Introduction, which elicits the theme of this thesis, namely restraining criminal law and the meanings of restraining is defined in the Introduction.The thesis text is consisted of five parts:The historical evolution of Chinese and Western Criminal Laws thoughts is introduced in the first part, which elicits the historical trace of the formation and development of the restraining criminal law. The thought of light and careful punishment is applied at the appearance of punishment in the primitive society in China, which is one of the great characteristic of the punishment thought in Chinese history. While heavy punishment thought was dominated in the slave society and feudal society with severe punishment application. In the west, the humanitarianism emerged in succession such as the modern time criminal law thought of humanism, human right endowment, sovereignty by human, individuality liberation, humanity, freedom and everyone is equal in law, which provides a profound historical origin for the appearance of the restraining criminal law. The restraining is not systemically expressed and widely recognized till the mid of the 18^th century.The elaboration on the legal principles of the restraining criminal law is analyzed in the second part. Firstly the understanding change of the criminal law function is analyzed. The change focal point of criminal law concept should be set on the aspect of inspecting and guaranteeing individual rights. Human right guarantee function should be given priority when the social guarantee function of criminal law conflicts with the rights guarantee function of criminal law. Secondly the understanding change of punishment function is analyzed. The effect of the punishment for the criminal prevention can not be over-estimated. Though punishment may exert positive prevention effect on some crime to some degree, while it can not eliminate the crimes in the society by itself, in other words, punishment function is limited. Thirdly the economy of criminal law is analyzed. The economy of criminal law claims that the punishment should be limited to certain necessary interference. Only under the circumstance of the case that the basic value and order that is essential to the society is violated greatly and no other effective way and means can protect can the criminal law is applied for prevention.The social basis of restraining criminal law is elaborated in the third part. The base of restraining criminal law is explored through some social factors such as the politics, economy and culture. From the political point of view, the criminal law is made by the legislators who experience an evolution process of defining crime in different historical period, which can reflect the characteristic of the corresponding national character and regime structure. Under the current regime structure of power division system, the restraining, humanism and equity of criminal law is its noticeable characteristic and important value connotation. From the economic point of view, under the system of socialism market, all economic relationship and contradiction should be settled via the market adjustment and over-severe punishment is not consistent with the internal logic of the market economy. From the culture point of view, Chinese traditional Confucianism which advocates courtesy and rites believes that punishment is the supplement to the monarch with great virtue and the purpose of the punishment is to educate, which has contain the value concept of restraining as the human nature is kind therefore people can be educated and transformed to be good.The representation of restraining criminal law is stressed in the fourth part, which is the key part of this thesis. In the author's view, restraining criminal law should include the following three aspects: firstly the contraction and limitation of the criminal law adjustment range, in other words, the adjustment range of criminal and application of punishment should be limited. Secondly the criminal law supplement: criminal law is the most severe legal punishment means, which determined its assisting role in keeping the social order. Thirdly the punishment leniency: such trend is materialized variously in legislation and judicature.In the fifth part, the implementing approach of restraining criminal law is put forward combining the current situation of Chinese criminal and law. Firstly the restraining of the crime, that is to say non-incrimination. Secondly the restraining of the punishment, which is comprised of non-penalization and light-penalization. The basic thoughts of Chinese criminal policy embody the connotation of non-incrimination and non-penalization.Finally the importance of restraining criminal law is emphasized from the view of Chinese current legal system development in the form of the Tag.