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On Temper Justice With Mercy Criminal Policy

Posted on:2008-08-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiuFull Text:PDF
Abstract/Summary:PDF Full Text Request
The research on the criminal policy of combining punishment with leniency, the basic criminal policy in China, still remains on the level of concept, connotation, theoretical foundation and historic origin. Therefore, a wide research gap exists as how to legalize the policy, how to actualize it, and how to apply it to judiciary practice. The paper, by making research on the policy and studying the relationship between the criminal policy and the criminal law, brings forward several assumptions on applying and embodying the policy from the following three sections:Section one devotes to the general interpretation of the aforesaid policy. Starting from the analysis of connotation, historical origin, theoretical basis, and function, the section comes to the conclusions that the major theoretical basis of the policy is economical principle and retribution penalty theory in criminal law, that the policy includes the logical relations of being lenient at the case that deserves leniency and being strict at the case that should be strict", "being interdependable and complementary in leniency and punishment", and"being integrated and modest in leniency and punishment", and that in the field of value, the relationship between the two is that criminal law is directed by criminal policy; in terms of countermeasure system, criminal law is in conformity with criminal policy; in the side of specific measures, criminal law is rectified by criminal policy, hence, establishes the corresponding theoretical basis for applying the criminal policy of combining punishment with leniency to judicial practice.Section two, entitled the criminal policy of combining punishment with leniency and improvement of substantive law, elucidates, from the relationship between criminal law and criminal policy, that formulation of criminal law should be guided by criminal policy, whose correctness, in turn, will be checked out by criminal law through application. The policy, the basic one in our country, functions both as soul and core for legistation and judicature. Reflecting on deficiency of substantive law in our country, this section , from the perspecitves of transformation in legislative objectives, improvement in conviction system and that in penalty system, advances that legistive obejectives should be transformed from solely"punishing convicts" to "preventing and controlling" crimes, conviction system perfected from criminalizing certain severe social detriment conducts and decriminalizing certain special conducts, and criminal penalty system improved from retaining death penalty system, substaintializing life-imprisonment, diversifying short-term imprisonment penalties, individualizing criminal penalties, etc.Section three, entitled the criminal policy of combining punishment with leniency and improvement of procedural law, puts forward, under the guidance of our country's criminal policy which emphasizes crime control, the difficulties in carrying out, in criminal procedure law, the function of protecting human rights, the vainness of the limited regulations of rights in prodecural law under the guidance of basic criminal policy, and the nominal state of procedural law. With the criminal policy changing from severe punishment to punishment with leniency, it is necessary for procedural law to make corresponding improvement. This section, elaborating from the deficiency and improvement of fundamental principle system of criminal lawsuit objectives, that of pretrial procedure, and that of trial procedure, brings forward the idea of setting up the dual lawsuit objectives of "guaranteeing human rights" and "punishing criminals", establishing principles of legistive procedure, stipulating principle of presumption of innocence, clarifying principle of the equality of the prosecution and the defense, formulating judicial independence principle, and improving and protecting the defense rights of the accused is advanced, so as to improve the criminal pretrial procedure from reforming criminal investigative procedure and prosecution procedure, perfect criminal trial procedure from reforming common trial procedure, simple trial procedure, and special trial procedure, therefore, eventually embodies and applies the policy to criminal legistation and criminal justice to provide legal guarantee in constructing a harmonious society.
Keywords/Search Tags:combining punishment with leniency, criminal policy, criminal law
PDF Full Text Request
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