The Criminal Principles Of Necessity

This article attempts from the theoretical origin, the basic connotation and thoughts origin and the similarities and differences with modesty-and-restraint principles to illustrate the criminal principles of necessity, establish its position of the fundamental principles and further discuss its influence on the legislative and judicial practice.This paper will be divided into five parts:The first part is preface, mainly discussing research significance and background of the criminal principles of necessity.The second part outlines the criminal principles of necessity. First, based on the theory of adjusting object on critical disputes on the basis of analysis of the criminal law is put forward its own independent adjustment of the object: That criminal law is to adjust the individual citizens basic human rights and basic human rights of all citizens safeguard national legal system of social relations between. While in this country punishment is two should protect the rights of a harsh choice, Then put forward to the connotation of criminal law principle: In order to ensure that all citizens only the basic rights and forced to individual behavior considered a crime, the offender deprived of basic human rights. Secondly, this paper examines the necessity of the principles of criminal law thoughts origin, back to the age of enlightenment on the criminal law and Baccaria judge and the necessity of western law principle. Again, the principles of criminal law in criminal law system to the position is discussed. Through the necessary principles and basic principles of criminal law, think to principle is more superior than the basic principles of criminal law, the principle of the criminal law shall be positioning for fundamental principles.The third part compares the criminal principles of necessity with modesty-and-restraint principle in criminal law. First, the paper points out that both similarities in criminal law should advocate in other legal means to be effective adjustment, restricted the power function, and the thought origin can be traced back to the age of enlightenment, But in a way, the source of power restriction and standard exist in aspects of qualitative difference, therefore not equal. Secondly, through comparing, pointed out the essential principles of fuzzy exist, content and meaning unclear lack such shortcomings, contrarily, principles, contents, standards clear with comprehensive advantages and meaning clear. Therefore, this paper claims in the theory of criminal law should be used to replace modest principles. The fourth part mainly discusses how to apply the criminal principles of necessity to practice in criminal law. First, in legislation, the principles to affect mainly embodies in the designation and punish crime circle of setting. That is the essence of crime, to ensure all citizens of the national legal system of basic human rights. Principles of criminal necessity is proposed based on the practice of crime circle defined standards, and the legislative factor of the crime, this paper argues that the crime circle by delimit actions objectively shall have the serious harm to the society, the national legal system to destroy a kind of applicable law to maintain the normal social order: To ensure all citizens should be as basic human rights of the opposition national legal system in a hostile attitude. In this paper, the setting of the aim of penalty by analyzing the various views, pointed out the limitation of traditional ideas that punishment is necessary as evil, actually between justice and utilitarianism and disputes . Put forward the aim of penalty is to protect human rights, and the setting in criminal punishment to human rights and between all citizens. From the necessity of setting principle, should make crimes, which requires the sentencing crimes cost shall be slightly benchmark returns than crime, so as to better safeguard the basic rights of all citizens. Secondly, in the judicial level, the principle to mainly embodied in the influence of conviction and sentencing. In the process of condemnation to principle is mainly embodied in the legislation on how to understand the criterion for imposing penalty, in sentencing process shall be required to realization principle of punishment on. Finally, the article analyses the advantages of judicial reconciliation system that achieves the goal of protecting human rights of both victims and other citizens with the minimum cost, and points out that judicial reconciliation accords with the characteristic of the criminal principles of necessity and better implement the claim that"try not to use the penalty as one as possible".The last part is the conclusion. The criminal principles of necessity is considered in this paper to practice in a long process of gradual change to the whole society, needing gradual conceptual change from omnipotent criminal penalty in a whole society. Penalty punishment and other social control measures are demanded to function jointly and coordinate integrally in order to realize its value in assurance of human rights.