The Study And Achievement Of The Modestly Restraining Spirit Of Criminal Law

Criminal law scholar's conclusions of the conception on the modestly restraining spirit of criminal law are different because of the different time and angle. We could make a summary profit from these different viewpoints, that the modestly restraining spirit of criminal law means our country should control the scope and degree of criminal law and make the penalty more kindly defer to a certain rule for protecting people's benefits and human rights in legislation and judicatory.The inspection of the phylogeny of criminal law find out that the modestly restraining spirit of criminal law has become the zeitgeist of criminal law in contemporary society gradually on the premise of the sense of democracy and equality. This conception contains information including finiteness, efficiency and humanity of criminal law. Finiteness of criminal law means the criminal law's regulative scope as well as the penalty's utilization is limited, but is not infinite. Efficiency of criminal law means gaining the biggest benefit by the least criminal law resources investment. Humanity of criminal law means that we should protect offender's lawful right and personal dignity when punish them. The foundation of the modestly restraining spirit of criminal law includes the intention penalty theory, the economic analysis theory of criminal law, the safeguarding of human rights theory. Non-incrimination, non-penalization, and moderation of penalty are essential to meet the requirement of the modestly restraining spirit of criminal law. Non-incrimination is a theory has relation to finiteness of criminal law which means criminal law should reject those light harmfulness illegal act which is unnecessary to give penalty, for causing its legalization or the administration illegal. Non-penalization is a theory has relation to efficiency of criminal law which means legislature and judicial organ apply the non-criminal activity sanction measures to those light harmfulness illegal act to economize criminal law resources in the receptivity of society as far as possible. Moderation of penalty is a theory has relation to humanity of criminal law which means legislators and judges use the light penalty to achieve the desired effect of penalty as far as possible.