The Practical Predicaments And Strategic Reflection On Fine Penalty Application

The system of fine penalty, accompanying the human beings until now, is an ancient punishment, whose original source on legal system, no matter in China or abroad, is able to trace back to the end of primitive society. Fine penalty is playing more important role nowadays in the process of light-punishment in criminal law around the world. As important as free-punishment now, it's widely applied in some western countries, and even becomes principal penalty, while China's fine penalty system in criminal law is given more attention. Since the application of fine penalty in criminal law was extended in 1997, fine penalty has been promoted into a higher position in the system of criminal law. As a result, the problems and disadvantages about the system of fine penalty all spring up, particularly in the application of fine penalty. Hereby this thesis is made.Generally, the theoretical study of law comes from the specific legal problems or legal phenomena. The theoretical study of the predicaments on fine penalty application is also not exceptional. Starting from the introduction of the basic knowledge about the fine penalty to bring about the elaboration on its definite problems, this thesis concentrates on the predicaments in the applicable range of fine penalty in order to propose a scheme to solve it by analyzing concrete problems and their results to find out the reasons. This thesis includes three parts, namely, the survey of fine penalty; the practical predicaments in application of fine penalty and the strategic reflection on the application of fine penalty.The first part is to introduce the basic knowledge about the fine penalty.The fundamental knowledge of legal theory is the fundamental basis of the study about the fine penalty problems. It is quite necessary to make enough preparation for the relevant knowledge in order to study the theory better. Which involve the definition and characteristic, its characteristic: such as fine penalty which object is to deprive the criminal's poverty. The final destination is to punish criminal by fining. The nature and function, its function: such as deprivation of punishment function of fine penalty and educational function. The legislation mode of fine penalty, along with the applicable principle, range and manner etc. The principle of fine penalty in the legislative module part is the main part. In order to meet the need of the following discussion on fine penalty application of predicaments, this part deals with the four application manner and the complement manner of the fine penalty. Such brief introduction enables the involved people including the author to acquaint themselves with the system of fine penalty, especially the systematical structure of fine penalty application, which is significant for the following discussions.The second part is to give considerable prominence to the definite predicaments when fine penalty is applied at present by illustrating the general situation of fine penalty. As to the extension of the application of the fine penalty and the predicaments of the application of fine penalty in the judicial field, it is believed that this paper aims at neatening the specific situation of the predicaments synthetically and it is promoted to a higher position on the specific study of criminal law as part of this paper. As far as the discussion over the definite predicaments are concerned, the author abstracts the practical predicaments existing in the application of fine penalty nowadays from the superficial phenomena and then gives detailed discussion, including the problems that exist and lead to serious consequence such as"Multi-punishment equals to suspicion or innocence";"Judgment is short of balance". The persuasion and credibility of this thesis is enhanced by virtue of examples and citation from others'judgments during the illustration. There are studies on eight problems including most of the practical predicaments in the scope of fine penalty application. The negative consequences resulting from the eight problems mentioning above are briefly explained in the final part, viz."three difficulties"such as the justice value is difficult to display.The third part is to analyze the reasons that result in the predicaments on the basis of the studies on the serious consequences caused by the predicaments and give the countermeasures to perfect the system of fine penalty. The analysis of the reasons mainly refers to five aspects—law tradition, legislation, judicature, theoretical study—from which the author respectively sets forth the deep reasons why fine penalty is so difficult to apply. The complete explanations of the reasons help us have a definite object in making the corresponding strategies. In order to get rid of the predicaments of fine penalty application, the author proposes his own ideas by integrating the analysis of the reasons with the problems discussed in the second part. The corresponding strategies refer to legislation, judicature, and theoretical study, among which legislation and judicature is attached more importance. For instance, we need to perfect the legislative stipulation, and make up the legislative defect so as to handle the problem of judicative application foundation from the aspect of legislation, while it is also needed to strengthen the judicative supervision, define clearly the departmental duty from the aspect of judicature. At last, the author talks briefly of the theoretical studies on the scope of fine penalty application. In a word, the perfection of fine penalty can not be coped with from one side but comprehensively to get a satisfying settlement.