On The Modesty Of Criminal Law In China

The modest and restrained principle of the criminal law is of great significance to the civilization of criminal rule of law, its spirit was displayed in legislative and judicial practice in many countries. Reviewing the development of criminal law in China we can find it is becoming leniency. For one thing, the adjustment range of criminal law is more clearly, the assignment and design of crime circle show higher adaptability; for the other thing, the conviction and punishment in criminal justice is becoming more and more standard, the judicial officers are pay more attention to ascertaining guilt and penalties applicable, as a result the fake and false charges have been reduced. We should not ignore the existing problems while applauding for the progress. A series of concept that breach the modest and restrained principle such as severe punishment doctrine and criminal law instrumentalism have been long standing in the field of criminal legislation, this makes the regulation of criminal law shows more rigorous than gentle, the set of charges is multifarious, intervene much of social life; severe punishment is far more than gentle punishment. What’s more, the criminal law pays more attention to strike than correction. Accordingly, the judicial activities show strict and heavy due to the dominant ideas of legislation and the instruction of the criminal law norm. Judicial staff keen on finding guilty when estimating harmful behavior and show negative in finding innocence. As it to the penalty applicable, they always choose imprisonment penalty to give a serve punish so that the so-called striking force could be manifested. In contrast, the application of light punishment was ignored or even avoided.To solve these practical problems, this article start from the interpretation of the value of modest and restrained principle of the criminal law, explaining its significance and effect in changing outmoded ideas such as severe punishment doctrine and the view of omnipotent criminal law and overcoming the disadvantages of criminal system design thus protecting human rights. Then scan the legislative and judicial reality in our country from the tolerance perspective carding the history of their history, summarizing the progress and setting out the typical problems, and then pointing out these questions were caused by the influence of improper ideas and the disadvantages of system design according tothe historical and empirical analysis. After that the article researches the solutions at the basis of value of modest and restrained principle of the criminal law above,pointing clearly that concept update and system transformation should supplement each other, the former is the foundation of the latter, the latter is the carrier and the safeguard of the former, they must be synchronized, none could be ignored. On this basis, the article elaborates concrete countermeasures from the perspective of practical and points out that criminal law adjustment is just a subsystem of social system, therefore legislation and judicial practice should keep restraint in finding guilty, and provide adequate space for other adjustments,highlight the complementary of criminal law in its function, so as to obtain the biggest adjustment effect with minimal resources, and emphasizing the existing concept and system should be transformed under the guidance of tolerance concept, promoting the criminal law change from severe to gently, and turns the single value target of heavy penalty to the diversified value targets of regularizing harmful behavior, stabilizing the society and protecting human rights.