Public Criminal Law Based On Theory

The civil criminal law is rooted in the civil society. In modern civil countries, under the rule of law, it is the shoud-be criminal law which takes the constitutional government as its foundation, takes safeguards, the civil rights and interests, limiting state power as its starting point and home to return.The civil criminal law has four unique moral characters, that is, Constitutional government, Modest, Right and Validity.The civil criminal law's foundation may be divided into two kinds: the foundation outside the law and the foundation inside the law. The former includes economic basis and social basis. The latter includes cultural law foundation, value foundation and law body foundation.The market economy appears and has replaced the feudal self-sufficient economy. Thus, the civil society comes into being and is segregated from the medieval feudal political countries. And it becomes the foundation of the opposition and agreement of political countries and the civil society. It has aroused people's consciousness of freedom and equality, has established people's self-consciousness, and has provided deep economic basis for the formation of the civil criminal law.The civil criminal law has taken roots in a certain material life and has realized its value under this basis. The separation of the civil society from political countries marks the final establishment of rights concept, indicates the modernization of rights safeguard, and means the legality of the separation of the civil society and political countries. The civil society is the social basis of the modern criminal law. The true foundation and the fountainhead are not a country but the civil society.The production and development of the civil criminal law have its deep thought and cultural basis. It is the production of European Enlightenment and the ideological trend of Humanism, and is deeply influenced by natural law thought. There exists collision among different factions, which not only makes great contribution to the development of the criminal law theories together, but also provides deep economical basis for the construction and development of the civil criminal law.The establishment and development of the western civil criminal law is actually the establishment and development of Enlightenment theories in the criminal law, such as, equality, freedom, human rights, justice. The basic spirits of the civil criminal law are respects of the citizens, the society and the final guarantee. The value foundation of the civil criminal law includes equality, freedom, human rights and justice which have just been mentioned above. The modern criminal law value foundation should be fair (just), safe (order nature) and the human rights value.The law body foundation of the civil criminal law is the constitution foundation, mainly manifests the sovereignty of people and the supremacy of the law. Firstly, the sovereignty of people is one basic element of the modern "rule by law " and many countries consider it as the instructional idea of political construction. Next is the criminal law foundation, which mainly displays the criminal law function and the legal principles of the crime punishment.As to the construction of the civil criminal law in our country, we should consider some new aspects: the first one is the human relations factor, that is, we must pay great attention to the human nature and humanity.The human relations factor has to take the relations of the law, the sentiment and the principle into consideration, which actually reflect the relations between the law and ethics morals.The next one is the localization factor. In the process of constructing the civil criminal law, we should vigorously cultivate the real civil society, but cannot be impetuous and rash. The country is supposed to act in an orderly way, which is good for the harmonious interaction potential state of the right and the authority. Also we must not only consider the congenital deficiency of the Confucianism cultural law and order, but also pay attention to the fusion of the criminal law modernization and the localization simultaneously.The final one is the belief factor. The criminal law is not only the big charter of the citizens' rights, but also the crime person's big charter. The belief foundation of the criminal law is that: the more the criminal law can safeguard and develop citizens' basic rights, reflect citizens' wishes, the more the citizens can believe the criminal law. The criminal law should first be agreed to, can it be believed in.Because of some traditional and realistic reasons, there are some difficulties in the construction of the civil criminal law in our country: the immaturity of the civil society, the invasion of the state power, the nationalism of the criminal law. Therefore, in order to construct the civil criminal law in our country, the following aspects can be considered: vigorously cultivate the civil society; effective restraint state power; realize jurisdiction independence; unite the criminal law's modernization and localization effectively.