Beyond The Predicament: Research On Applicability Of Criminal Penalty

Criminal penalty, as a light method of punishment, is popular with many countries. It was written into our criminal law in 1979, and was also amended in 1997, enhancing and expanding its scope of application. However, its frequency of application in our criminal judicial practice has gradually declined, and it has brought out many problems. It seems that it will be abolished in future.Researches in Social science scope, should have broad perspective, as to Penalty, however, many scholars often confine their eyes to the pros and cons, functional analysis, and analysis of relevant provisions in China's Criminal Law Code, and so on. Under such circumstances, from the macro and the whole level, relying on the guidance of the concept of"Criminal Integration", we can find out a new way to research on Criminal Penalty, which will do a lot good to the bad state.This paper can be divided into five sections, and in a logical sequence, it is displayed along emergence, development, problems, analysis of the problem:Chapter I, as the cornerstone of the whole article, it firstly introduces history of the development of penalty briefly; then focuses on analyzing the nature of Penalty: Penalty is punitive and pain; and finally combining with the general evolution process of it and its impact, analyses the status quo and its position in our Criminal Law. Chapter II is mainly an analysis of its departure in the theoretical and practical area: Basing on"Judgments Auction Events"and the fact that it is often not carried out effectively in real life, the chapter carefully explores the great dangers of this phenomenon, and with my last two decades work experience in grass-roots, analyses various phenomena of its "alienation".Chapter III focus on the reason why it had encountered plight, which can be divided into three major aspects: First, social reasons, and it contains impact of the traditional law concept and legal culture, the constraint by heavy penalty background, and side-effects brought by social transformation; Second, legislative reasons, mainly about questions of concept and reality system; Third, judicial reasons, pointing out the factors that play a helpful role in its judicial process.Chapter IV was concerned with the pros and cons Penalty: Firstly, the essay gives a brief introduction of the dispute over the pros and cons, and then, detaching from simple disputes, I point out the legitimacy of criminal penalty basing on displaying out the related facts.Chapter V researches on the reconstruction of Penalty in the modern criminal law: The article highlights several most critical conceptual issues in its reform firstly; then, do not rigidly adhering to the concrete operation-question, I roughly outline the development and transformation way of modern Penalty from a macro perspective.