The Theory And The Judicial Application Of Personal Dangerousness

Personal dangerousness is a concept rise with the emergence of the individual prevention thought in the criminal demonstration school; it is also a very important category in the criminal law. But now in China, by comparison, personal dangerousness is just a new theoretical concept, and been subsequent development and it is raised beginning in the debate about individual penalty problem. So personal dangerous theory been in dispute not only in the judicial application but also in its concepts and positioning in the criminal theory.In order to clarify the concept of the personal dangerous ,it's position in criminal law and many problems in it's justice application, the paper discuss the problem of personal dangerous in two parts: the basic theory of personal dangerous and the judicial application of it.The fires part: the basic theory of personal dangerous. this part introduce the history of personal dangerous theory by the time at first, at the beginning, the criminal human school found the possibility of criminals from their biographical nature, later, the criminal socialism school found the possibility of criminal in the social environment and the natural condition, and they thought the personal dangerous is the colligate reflection of physiological factors, natural factors and social factors. After the further elaboration about the Personal Dangerous in the social defense theory and responsibility theory of personality, Personal Dangerousness theory has to further mature with the passage of time. next, the article discusses the concept of Personal Dangerousness now in our contrary, and that the concept of Personal Dangerousness on its own is a first-time offender should include the possibility of recidivism and the possibility of two, and the Personal Dangerousness's" Meaning "and" application "should to be thinking in two parts, and should not be confused. At the same time, in order to Clear the connotation and extension of the personal dangerousness, the papers distinguish it with other three concepts: subjective evil character, social harmfulness and personality. Also the positioning of personal dangerousness in the criminal law is be in discussion, but as a whole, the personal dangerousness should be a basic concept in the criminal law, as well as in the application of the judicial process. Finally, to give a more complete theory of Personal Dangerousness, and in order to make up its own bug such as ambiguity and imperfection, the paper discuss the problem of the measuring the personal dangerousness. Through the conclusion of characterization factor of personal dangerousness and the practical explore of this problem, means that the bug should be overcame by human, so the measurement should be possibility.The second part: the judicial application of the personal dangerousness. In the conviction, we negate that personal dangerousness could be the hereunder. Personal dangerousness theory has their inherent flaw, that is all its own subjectivity and uncertainty, and these flaws endanger the purpose of "retribution" to a large extent, thus endanger the fairness and justice. At least in this stage, because our theory and skills is not enough to overcome the "defects", so we can not be convicted too much emphasis on personality factors in the field of crime.However, in the area of sentencing, the attention of Personal Dangerousness should be greatly enhanced, and the accuracy of quantitative Personal Dangerousness is an achievable goal, Personal Dangerousness's application in the sentencing process has its legal principles and legal basis, Personal Dangerousness should be included in the penal system's discretion. The paper has made a specific assumption of application of the Personal Dangerousness on the process. First of all, made a preliminary judge about personal dangerousness, clear whose personal dangerousness tend to zero, and then plus the certain terms on the minimum starting point for sentencing on criminal accordance with the Personal Dangerousness people. Than the sentence will be split for the two-step process, not only to meet the requirements for the general public of equal retribution, but will also accord with the need of special prevention for crime penalty, and Personal Dangerousness will be effectively integrated into the system at the discretion of the penalty area, make it be applied to the practice. Finally, in the process of implementation of the penalty, the application of the Personal Dangerousness is the most uncontroversial part, the majority of academics do not deny that the application of the Personal Dangerousness in the implementation of the penalty. In fact, here we are referring to the Personal Dangerousness in the implementation of the penalty shall be applicable of the individual execution, because individualized execution require that carry out correction on offenders must by the degree of personal dangerousness, and the individual of execution itself Or even a whole individual of sentence itself is make the Personal Dangerousness as the cornerstone of the theory, not a Personal Dangerousness theory, there would be no penalty individualized approach to the implementation. The requirements of individual criminals is the classification of Personal Dangerousness degree, and taken to reduce the Personal Dangerousness in order to achieve narrow Personal Dangerousness criminals in accordance with different types of measures. China's three major penalty taken by specialized implementation of the system, that is, probation, parole and commutation of sentence, in the guide of purpose of the penalty, were designed to promote the transformation of crime, and were set up with the physical nature of the system, which plays an important role in the course of implementation of the penalty, but also fully embodies the principle of humane treatment of criminal law and the rational purpose of the reform of crime ,in the fact the three systems also includes the Personal Dangerousness thought, Personal Dangerousness is the basis of its implementation.All in all, the perfect development of theory of Personal Dangerousness, as well as the application of the theory in its judicial process, has great benefit for injecting fresh blood to China's criminal law theory and judicial practice, as well as the policy objectives which required people-oriented.