On The Individualization Of Penalties Under The Principle Of A Legally Prescribed Punishment For A Balanced

The philosophy of Individualization of the Criminal Penalty is a kind of philosophy on criminal penalty raised by the Modern Criminal School to fight against the philosophy of Suiting Penalty to Crime insisted by the Classical Criminal School. The current theory of the criminal law has combined the philosophy of Individualization of the Criminal Penalty and the philosophy of Suiting Penalty to Crime since it is easy for the philosophy of Individualization of the Criminal Penalty to bring out rash judgments on the criminal penalty and infringements on the human rights. The current theory of the criminal law tends to research the philosophy of Individualization of the Criminal Penalty by considering it an internal part of the philosophy of Suiting Penalty to Crime. China and any other countries in the world are all have its laws and regulations from this point of view. This paper will start the research from the development of the philosophy of Individualization of the Criminal Penalty and the philosophy of Suiting Penalty to Crime and then analyze on the value and connotation of the philosophy of Individualization of the Criminal Penalty, the relationship between the philosophy of Individualization of the Criminal Penalty and the philosophy of Suiting Penalty to Crime and the realization of each of the philosophy and the provisions regarding the philosophy of Individualization of the Criminal Penalty in Chinese criminal law and the deficiency of such provisions. This paper consists of four parts in about 35,000 words.Part One: The combination of the philosophy of Individualization of the Criminal Penalty and the philosophy of Suiting Penalty to Crime. The philosophy of Suiting Penalty to Crime insisted by the Classical Criminal School is activity-oriented. It holds that the criminal penalty is the retribution to the crime or the criminal penalty is a way to prevent the crime. The philosophy pays no attention to each different individual and insists the criminal penalty shall be decided by the activity. The Modern Criminal School comes up with an individual-oriented philosophy which insists the special prevention or rectification of the offender from the perspective of the nature, society and the human being. The philosophy is individual-oriented and insists the criminal penalty shall be decided subject each different individual. Such philosophy held by the Modern Criminal School is absolutely contrary to the philosophy of Suiting Penalty to Crime and has brought a lot of infringement on the human rights and violation against the justice. The New Classical Criminal School and the New Social Guard School finally come up with a theory combing these two philosophies together.Part Two: The value and connotation of the philosophy of Individualization of the Criminal Penalty. The philosophy of Individualization of the Criminal Penalty is individual-oriented and has a value to justice, and restraint humanity. The philosophy of Individualization of the Criminal Penalty focuses on considering the danger of the individual. The different danger by different individual is a complete expression of the connotation of the philosophy of Individualization of the Criminal Penalty. The way that the danger of the individual is used to analyze the possibility to commit a crime first time or commit a crime again also provides a way to enforce the philosophy of Individualization of the Criminal Penalty.Part Three: The relationship between the philosophy of Individualization of the Criminal Penalty and the philosophy of Suiting Penalty to Crime and the realization of each of the philosophy. The philosophy of Individualization of the Criminal Penalty pays special attention to individual and is making the evaluation based on the danger of the individual, which has maken the danger of the individual very important to the evaluation of the criminal penalty. The author of this paper thinks that the danger of the criminal activities and the danger of the individual shall be the two points of crime. The philosophy of Individualization of the Criminal Penalty shall be included as the part of the meaning of the philosophy of Suiting Penalty to Crime. The philosophy of Individualization of the Criminal Penalty is individual-oriented and therefore the analysis on the category of the individual and the analysis on the subjective and objective part of the individual shall be the way to help to enforce the philosophy of Individualization of the Criminal Penalty.Part Four: The provisions regarding the philosophy of Individualization of the Criminal Penalty in Chinese criminal law and the deficiency of such provisions. The author of this paper analyzes the provisions regarding the philosophy of Individualization of the Criminal Penalty in Chinese criminal law from the meaning of the suiting penalty to crime in China, the category o the individual, the criminal policies. There are a lot of deficiencies of the provisions regarding the philosophy of Individualization of the Criminal Penalty in Chinese criminal law reflected in the process of legislation, penalty decision d the enforcement of the penalty. The author tries to come up with some measure to minimize the deficiency.