The Research Of Treatment Of Misdemeanor And Its Mechanism

Along with the progressing of the study of Criminal Law theory and continuing development of social practice, emphases has been gradually put on the mechanism of protection of human rights in Criminal Law and specific mechanisms for the protection of human rights is gradually built.In this process, countries adopt a number of measures, making some misdemeanor not be punished by Criminal Law. Nevertheless, compared to the general criminal cases, social harm caused by the misdemeanors and the subjective vicious of the criminal are smaller. But misdemeanors are easily happened, its number is much more than normal criminal cases. So, the strategy of judicial adjustment of misdemeanors is significant to achieve the purpose of punishment and maintain social stability.In this paper, with concerns of the care of humanity, considering the utilitarian benefits of criminal law, based on the value of the crime label theory, through the interpretation of principle of statutory crime and punishment and combined with the practice in the legislative and judicial areas in our country, I try to demonstrate legal basis and construction of its mechanism for not punishing misdemeanors. I hope it will give better play to the humanitarian and modesty of criminal law, respect and protection of human rights, judicial cost savings, and maintaining social stability.In the first part of this paper, I introduce the way of punishment of misdemeanors in China. First, I try to clearly define the concept and the scope of misdemeanor. Then I pointed out the way of punishment in Chinese criminal legislation and judicial practice and briefly review the pros and cons of various forms.At present the general ways of non-punishment to misdemeanor in Chinese judicial practice are reeducation through labor, discretion not to prosecute, acquitted and criminal reconciliation, etc. Because there are no direct bases in legislation, non-punishment to misdemeanor is largely depending on the power of discretion of judicial and law enforcement officials.The second part focuses on the jurisprudencial basis of non-criminalization of misdemeanor. It is pointed out that the criminal punishment may not be the best choice for rehabilitating the misdemeanor from the angle of non-criminal approaches and economical effeciency of criminal law. It comes to a conclusion on the justification of non-criminalization of misdemeanor with sufficient analysises of the crime-label theory and discussion on the crime-prevention theory and humanitarianism and humbleness of criminal law as well. Through the exploration to the origin of the Principle of Prescriped Punishment of Specified Crimes, and the comprehension of general trends of our time, it's argued that the theory of non-criminalizaition of misdemeanor doesn't voilate the Principle of Prescriped Punishment of Specified Crimes but it's naturally embodies in such basic principle. What's more, it could greatly benefit the judicial practice under law by judges and procurators.The third part tries to construct the legal system of non-criminalization of misdemeanor. First of all, the defeciencies in criminal legislation and judicial business are re-thought, and the layout in the procedural and practical aspects is also under careful examination. It is concluded that the present provisions on misdemeanor don't conform to the purpose of criminal punishment, and the imbalance between the social harm of such behavior and the cost of judicial business is quite obvious. As a result, it's held that resovlving problems and manifesting the judicial civilization should always be kept in mind, and a set of designs for reconstruction of such system is given at last.