On Responsibility And Punishment To Adapt The Principle

This paper takes the principle of legislation that the crime the criminal responsibility and the penalty must be compatible with each other as a guilding principle, elaborating the concept of this principle of legislation,its requirements in the judicial practiles and its connotation of value.This paper will inquire into the crime,the penalty and the criminal responsibility deeply so as to expound the legislative principle that the crime,the criminal responsibility must be compatible with each other in a comprehensive way. The crime is a social phenomenon and was born with the formation of the state from the beginning of human civilized society. Inevitably, the dominators must punish and take strong measures against the criminals in the name of the state.The legal measures of punishment must take the means of penalty. Once we use this means,we must think whether we use the procedure of punishment or not and how operate it in a concrete way.Thus the symmetry between the crime and the penalty are concerned.To solve this problem, We must take the criminal responsibility as the basis of the crime and the penalty.That if the criminal has the ability to assume the penalty and if his or her action has some elements to constitute a crime are always concerned when we talk about the criminal responsibility. The more harm the action will do to the social legal interests, the more criminal responsibility the criminal must assume,thus the more serious penalty he or she must accept.The principle that the crime, the criminal responsibility and the penalty must be compatible with each other was proposed as a requirement of human rights in the western bourgeois revolution. The criminal theory scholars,sociologists and philosophers have approachedthis principle from different angles. The benevolent sees benevolence and the wise sees wisdom-ditterent people have different viesws. In different historical periods, different theories and schools came into being. Such as the school of classical criminal theory and the school of encyclopedia.The views of these schools had great influence on the criminal legislation and judicial pratices of later ages.As a country with an ancient civilization, China was a feudal cociety for a very long time, so at that time the capitalism class had too little power to have a deep research into this principle. Only after the foundation of the People's Republic of China did china develop its own criminal theory and criminal legislation drawing on the experience of the theories of the former Soviet Union. After the opening of the Third Session of the Eleventh Central Committe of the party, China began to widely use and absorb the quintessence of western criminal theories. China had made rapid progress on the research of criminal theories because of the good academic environment which formed after the year of 1978. This progress supported the public appearance of the criminal laws theoretically in 1979 and 1997. But because of the deep influence of the former Soviet Union, the criminal theories in China couldn't explain the fact that the penalty couldn't apply to some nominal criminal actions. In other words, these theories fail to explain efficiently and clearly that if some conducts which are exempt from punishment are criminal conducts.Having probing into large quantity of materials of criminal theories, and making use of the working experience of judicial practices in China, I want to put forward a certain kind of crime constituting theory. In this theory, the criminal responsibility will be regarded as a criterion of a criminal action and as a basis of accepting penalty or accepting what kind of penalty. Awording to this revised crime constituting theory, when we judge a certain conduct is criminal or not, the standard must be that if the actor has the ability to assume the criminal responsibility. If the actor is unable to assume this responsibility, no matter he or she has done harm tothe social interests or not, his or her conduct will not be regarded as...