A Study On "Ultima Ratio Of Penalty"

With the development of theoretical research and society, theprinciple of "ultima ratio of penalty" is receiving wider acceptance bymore and more scholars. And "ultima ratio of penalty" connotes manymeanings. Most researchers in the field of criminal law study theprinciple of"ultima ratio of penalty" from the perspective of crimes, andthey seldom study from the perspective of penalty. If there is such kindof research, the study is done abstractly and lacks concrete andcontrollable standards, which is not suitable for the important position ofpenalty.This thesis studies "ultima ratio of penalty" from the perspective ofpenalty. There are two reasons of choosing this perspective: first,because penalty concerns the freedom or even life of a citizen, it isundoubtedly significant from the view of the whole system of criminallaw and social punishment; second, the name of crimes is probably notimportant to a criminal because he cares most about the severity orlightness of the penalty, which has direct influence to his own good.This thesis carries out detailed study of "ultima ratio of penalty",and analyzes the present situation of "ultima ratio of penalty" and thesignificance of improving it from the stages of legislation, judicatureand the implementation of penalty.The introduction mainly talks about the significance of the study ofthe principle of "ultima ratio of penalty". Except the introduction andconclusion, the dissertation can be divided into four parts, with 39,000words altogether.The first part discusses the concept and connotation of "ultima ratioof penalty", and introduces the history and controversy over it. Thisthesis contends "ultima ratio of penalty" means penalty, a kind of severepunishment, should base on the proper evaluation of its historicalfunctions and adjust its severity with the change of time; moreover,when certain crime should impose penalty, the scope and extent of penalty ought to be controlled strictly and the humanization of penaltyought to be guaranteed according to relevant principles so as to upholdthe status of penalty as the final means of the most severe punishment,to uphold humanity and leniency.The second part studies the theory and foundation of reality of"ultima ratio of penalty". The thesis analyzes the necessity of "ultimaratio of penalty" from the aspects of the relation between penalty andcrime, the cost and associate influence of penalty, the history of penaltyand the social and current situations.The third part makes a detailed analysis of the existing problems of"ultima ratio of penalty" in practice. Although penalty needs "ultimaratio" from the theoretical and reality basis, there are many actions inconcrete implementation which contradict the spirit of "ultima ratio ofpenalty". Besides, the author studies the existing problems of penalty indetail from the levels of legislation, judicature and the implementationof penalty.The fourth part discusses the perfect of penalty under the guidanceof "ultima ratio of penalty". Through the above discussion, the authorpoints out if our country means to realize the concrete improvingpolicies of "ultima ratio of penalty", the improvement should be carriedout from the aspects of thoughts, content and methods to make "ultimaratio of penalty" come true.