Some Consideration On Depenalization

Depenalizasion is one of the trends of the world's criminal law development .In the foreign country, the depenalizasion has a significant influence, but in China, the study is just beginning. There are disputes on some basic questions still. For example, different scholars have different ideas on the connotation of depenalizasion.The objective foundation and theoretical basis of depenalizasion's formation and development still need deep research. How the depenalizasion can adapt to our practice better is a realistic question. The whole article includes three parts to analyze the three questions above.The first part is the consideration on the connotation of the depenalizasion. The theory of depenalizasion may take back to'the substitute measures of criminal punishment', whose author is Ferri. Ferri is the leading exponents of the school of criminal sociology. Through the analysis of many statistical dates on crime, Ferri believed that the useness of criminal punishment was too limit to mention. So he advocated that abstaining from criminal punishment and turn to the substitute measures of criminal punishment. Though the theory of'the substitute measures of criminal punishment'was not called depenalizasion, it advocated the abstaining from criminal punishment, so that it was the original and maximum sense of the depenalizasion. With the development of the practice and theory, the connotation of depenalizasion is changing. The idea of abstaining from criminal punishment is charming, but there are some troubles in judicial practice. So people began to maintain the broad sense of the depenalizasion. On this basis, there are still three different ideas, which include deprisonalization, the depenalizasion which contains decriminalization, the comprehensilism. Different from the two thoughts above, we talked in this article is in a narrow sense, for some special offenders, we use criminal sanction methods of the penalty. The premise of the depenalizasion's application is the person's action had already composed a crime, he should bear criminal liability. Its content is using other criminal sanction to substitute criminal punishment. The sphere of the depenalizasion is limited. Generally, it is applicated to the person who had petty crime or people who had dangerous of the person but hadn't gotten the adaptability to the punishment.The second part is the consideration on the objective foundation and theoretical basis of depenalizasion's formation and development. The growing of the production is the deepest reason and the most fundamental dynamics. The reality needs the formation of the depenalizasion. Because the crime rate was growing, but the conventional punishment can do nothing to it. Meanwhile, the formation and development is the result of many theories'support. The theory of'the substitute measures of criminal punishment'marked the formation of the depenalizasion. List was the initiator of the doctrine of intended punishment. The theory believed that on the stage of the state's punishment, the penalty already had purposes. The end of penalty was correcting the offenders and defending the society. The reason of crime includes social elements and personal element. For the social elements we should uses social methods; as to the personal element, we should take different measures to different offenders. We should encourage penal specific idea. On one hand, List advocated the reform of the punishment itself. On the other hand, he researched different non- punishment measures such as the security measure. So that it can fulfill the needs of correcting the offenders and defending the society. The doctrine of intended punishment made a strong support to the depenalizasion. But no theory is perfect, so as to depenalizasion. Depenalizasion advocated taking different measures to different offenders, so far, people haven't found any successful method to resocialization. The doctrine of retributive punishment also had its advantages and disadvantages. So a new theory was in demanding. The theory we called it compromiselism. The theory advocated that using the doctrine of retributive punishment to control the basic amount of the punishment, and take the advantages of the doctrine of intended punishment to control the floating scope of the punishment. On different stages of the criminal law's operation, it has different gravity. On one hand, the theory open a large space to the development of the depenalizasion. On the other hand, the theory limits the applicable sphere of the depenalizasion. It makes the depenalizasion matured gradually. The development of criminology, the theory of human rights, the criminal policy science also make a good influence to the depenalizasion.The third part is the consideration on the development of the depenalizasion in China. In our criminal law, there is the provision of the depenalizasion already. But there are still some troubles in the judicial practice. Under the influence of the doctrine of severe punishment, we haven't pay enough attention to the depenalizasion. In fact, it is not applied effectively. The operation needs lots of good judges, because the depenalizasion give discretion to the judges. But the judicial system and the judges are not satisfying. The depenalizasion's operation also challenges the criminal law in force. To these questions, the methods following may be applicable. First, changing the ideas. It is the ideological foundation of the depenalizasion's operation. It is the leading stage for depenalizasion's operation also, because any revolution must start from the idea. Second, we need improving the capabilities of the judges. Chang the judicial system, increasing the education to the judges, and make sure the talents can come to the judicial system more easily. So that we can supply the personnel to the development of the depenalizasion. Third,we should make sure the institution in applying and amending. For example, increasing the operational ability of non-crminal punishment, and put more emphasis on the operation of non-crminal punishment; lay more emphasis on the applying of depenalizasion on juvenile criminal case; build the system of security measures with Chinese character. So that it can provide institution guarantee to the operation of the depenalizasion.