The "Ultima Ratio Of Penalty" And Present Criminal Legislation

The"Ultima Ratio of Penalty"is the word and expression which is frequently mentioned in the modern criminal law study. The"Ultima Ratio of Penalty"also gradually seeps to the criminal law reform in various countries. Undoubtedly the"Ultima Ratio of Penalty"has had a bigger impact to China's traditional criminal law idea, and doesn't fully play its guiding role. Although at present some scholars in our country initiate the"Ultima Ratio of Penalty", abstractly affirm and concretely deny the"Ultima Ratio of Penalty"also generally exists. Therefore, the writer thinks it is necessary to reiterate the"Ultima Ratio of Penalty". To the"Ultima Ratio of Penalty"and the mechanism contain, it also need the necessity further to conduct the research and the discussion, the paper will offer a few ordinary introductory remarks, and some valuable ideas from others.Besides the introduction and the conclusion, this article is mainly divided into three chapters. The first chapter mainly elaborates the connotation of the"Ultima Ratio of Penalty", and elaborates it mainly from two aspects. The first section is the meaning of the"Ultima Ratio of Penalty", the second is the rationale of the"Ultima Ratio of Penalty". This article simply elaborated the meaning of the"Ultima Ratio of Penalty"as well as several viewpoints about it at present, elaborated these viewpoints about similarities and differences, obtained the writer's meaning view. The connotation of the"Ultima Ratio of Penalty"is a content which this chapter emphatically elaborated, about it the writer mainly analyzed from its social foundation and the theory foundation.The social foundation of the"Ultima Ratio of Penalty"mainly lies in the rising of the residential society and separating from the political country. The most basic reason of the"Ultima Ratio of Penalty"lies in the country with the change between the authority and the individual right. Corresponds relational, the formation of the"Ultima Ratio of Penalty"condition also forms in the right and in the authority correlation, the residential society's rising is the product of the market economy .The market economy requests the participants equal, the country protections the equal participants participate in the market economy, the political country services for the residential society, from then on the residential society separated from the political country, this also become the foundation of he"Ultima Ratio of Penalty", because the criminal law limits political country authority and maintains resident's authority ,the society foundation about it produced well along with the development of the market economy. If the society foundation of the"Ultima Ratio of Penalty"mainly studies the historical process which the residential society separated from the political country, then, we may say the theory foundation of the"Ultima Ratio of Penalty"mainly studies the dual the organic unification of the criminal law function, that is to say social protection and the human rights safeguard function which the criminal law contains.The second chapter mainly analyzed the value of the"Ultima Ratio of Penalty". This article thought the value of the"Ultima Ratio of Penalty"contains from the reduction, the supplement and the efficient three aspects to analyze quite to be appropriate. The reduction of the criminal law performances that the proportion which occupies in the entire legal framework gradually drops for the criminal law, and the criminal law net is reducing, the so-called reduction of throughout the criminal law that is to reduce the penalty as far as possible the interference and the severity, take gives the humanity most freedom as the goal, as far as possible little starts the penalty power. The supplement of the criminal law is based on the opinion which obtains from the analysis of law system, it is topic should have righteousness, involves the criminal law and other legal relations. The criminal law efficiency mainly is the analysis from the criminal law cost aspect, the penalty of the disbursement and the income contradiction needs us to solve, that is to say how realizes the criminal law benefit maximally. As each national crime resources always is limited, therefore maximally limits the crime on the request by the smallest penalty cost disbursement. The efficiency of the criminal law requests penalty resources are cautiously started and effectively deposited, these all but must be considered which bases on the analysis of the criminal law cost .The third chapter discuss the significance of the"Ultima Ratio of Penalty"to present criminal legislation in our country, mainly from two aspects legislates which contains instructions to the economic crimes and the traditional crime criminal activity to elaborate. Our country at present is at the initial socialism stage, the market economy is waiting for the development and the consummation. Because of the limitation of the market, the legal mechanism and the criminal law need to be stipulated. In this process, the economic crimes legislation is unavoidable and also is essential, therefore, we must observe the"Ultima Ratio of Penalty"in the economic crimes legislation .From the"Ultima Ratio of Penalty", in the process of the economic crimes legislation should follow the moderation principle and the coordinative principle. In criminal law theory, according to whether violates the public good custom and human ethics, some scholars divide crimes into two kinds which contain natural crimes and legal crimes. Usually violating the public good custom and the human ethics tradition crimes will be called natural crimes, but violating the prohibition standard of the administrative economical laws and regulations crimes to be called legal crimes. The criminal law also has differences in the concrete legislation process. This paper holds that, in the natural legal legislation process, we similarly should grasp the soul of the"Ultima Ratio of Penalty", selectively legislate. Specifically, when brings the so-called harmful behavior to the crime circle, we should fully consider following several factors: first must conform necessity to the crime, second must conform unjustness to the crime, three must be able to truly display the function of the penalty.With the development of the criminal civilization and the rationalization of person's value idea, the value idea of the"Ultima Ratio of Penalty", gradually initiated by more and more domestic and foreign jurists, and is gradually manifested in the criminal system. In the world scope the reform of criminal law is advancing towards the civilized, the humanity, in this kind of situation, the discussion about the"Ultima Ratio of Penalty"related theory question, and giving instruction to the government by law practice, the transformation from tool idea of the criminal law to safeguard idea of human rights, guarantees the criminal law to become the good citizen and the crime person's big charter. As one of modern criminal law significant ideals, the"Ultima Ratio of Penalty"is instructing the contemporary criminal law reform in various countries, impelling the movement of the development of the criminal law reform.