The Research Of Decriminalization

After the Second World War,the world of criminal policy towards the direction of polarization,namely towards the so-called"Loose Criminal Policy"and"Severe Criminal Policy"two different direction double-track movement. Under the influence of this criminal policy direction,decriminalization as one of the loose criminal policies should be shipped produce,and has aroused keen concern of the western criminal law theorists,raised widespread practice of western various countries.Initially,European and American various countries in order to alleviate the situation of high crime rate and prison overcrowding,reduced the scope of attack,but only implements the decriminalization to some so-called moral crime,and later,extended to the field of micro-crime. At present,the world criminal law turns toward the leisurely direction to develop,the decriminalization has dealt with this trend of development and influence widely various countries' criminal legislation and the judicial practice,become an important question, which now various countries criminal legislation and the criminal justice must consider.In contrast,since the founding of our country the decriminalization has not always been taken seriously,although our country criminal law theorists had been discussed whether should also implement the decriminalization before criminal law revision of our country,has also manifested some decriminalization thought in the criminal law revision,but on the whole,our country's criminal legislation insists the value tendency,that is the criminalization primarily and the decriminalization as supplementary. While our country present criminal law also has many such as law profits to be unclear,the malignant micro-crime needs to make decriminalization processing.Therefore,in our country criminal legislation,although has crime relativity idea manifestation,but the criminal law incomplete idea and the criminal law economic concept has not brought to the enough attention,our country's criminal legislation not really concerns about the individual freedom rights first protect question,under the condition,which the criminal law in the interests of individual freedom rights and social order conflict. our criminal law also does not really concern about the protection of social life can only the minimum problem for the limits of society's survival and development,however,these are core values of the idea of decriminalization. China is in the stage of construction a harmonious society,harmonious society insist people-oriented,emphasize the protection of human rights,which is decriminalization and provincial criminal society. The decriminalization contains the human rights and the democracy value idea,which coincides with the construction of a harmonious society in China's strategic intentions in line. The systematic study of decriminalization has the important theory and the practice significance undoubtedly to our country criminal law's healthy development and the harmonious society's construction.The full text of more than 30000 words,the body is divided into four parts to make a more systematic introduction to the decriminalization question.The introduction part introduces roughly the criminal policy the related content,and by the world criminal activity policy's polarization trend of development,draws out the decriminalization question as one of loose criminal policies.The first part of the body is an overview of decriminalization. Mainly carries on the discussion to the decriminalization concept,rests on the domestic and foreign theorists the viewpoint,divides into the narrow views,the broad views and the broadest views,and the viewpoint has carried on the analyzes separately to respective representative. Wherein systematic introduces and analysis the decriminalization's definition of the European Committee"Report on Decriminalisation"and Professor Otani,and draws author's analysis conclusion. This part also introduces the decriminalization's development process,with a view to decriminalization theory's production and the developing process and its concrete practice in various countries have a more systematic and comprehensive understanding.The second part of the body sums up the decriminalization basis of rationality. The author thought that the decriminalization has its common rational basis that surmounting various country-specific circumstances,and sums up the decriminalization's rational basis as the liberalism,the criminal law modest and restrained,the legal interest protection principles,the crime relativity idea.The third part of the body exploratory constructs decriminalization standards. The author thought that the decriminalization does not have the independent decriminalization standards. The criminalization must follow certain standard,the author constructs and analyzes the criminalization standard,induces the criminalization standard into the essential compliance and the realistic possibility. Based on this,comes the reversion through the criminalization standard to ponder that the decriminalization standard,considering the relative nature of crime, when the criminalization when it is based on the standards and conditions are not available,then as a criminal behavior on the treatment should be decriminated. This part also combineds with all times the decriminalization course,sums up an analysis of the decriminalization's main implementation domains.The fourth part of the body at the above-mentioned three parts,unified our country national condition and the government by law present situation has mainly discussed the decriminalization in our country's implementation question. In this part,the author thought that the decriminalization thought is not strange regarding our country criminal legislation and the criminal justice,but the decriminalization embodied the core value has not been enough received in the criminal legislation and the systematic introduces the decriminalization spirit in our country's present criminal law article and the revision process as well as in our country law of criminal procedure manifestation. The author through to the criminal law theorists to the decriminalization in our country feasibility dispute's analysis,points out that the decriminalization and the criminalization has the same value,are essential for the healthy development of the criminal law. In the above analysis's foundation,the author inspected the crime in our country present criminal law which needs to carry on the decriminalization emphatically,combines with the specific circumstances of our country to elaborate implementation of decriminalization path selection in china and related deficiencies and the views of improvement.The conclusion part mainly explains author's selected topic goal and the significance,the research key point and the difficulty are, and has pointed out this article deficiency.