On The Humility Of The Criminal Law

The humility of the criminal law is a hot topic among the scholars in and abroad. Scholars in Japan, China and Europe have different expositions. Japanese scholars claim that the humility is based on the complementariness of the criminal law, and the criminal law is necessary in social regulation, so it should be humble and restraint. Chinese scholars imported the theory from Japan and complemented it with local characters. However, both Chinese and Japanese humility is derived from the subsidiarity theory in Germany. We should go back to the subsidiariry theory to cognize the humility, and define it as the guiding principle of the criminal legislation, instead of legal principle or rule.Scholars in and abroad have raised four theories to support the theory of humility: first, the inevitability of the crime; second, the subsidiarity of the criminal law; third, the theory evolution of the purpose of punishment; forth, the economy of criminal law. The four theories exposed the cause of the necessity of the humility of criminal law.We never lack of Confucius mercy in our traditional thought, but there is full of Severe-Penalty Doctrine in Chinese criminal law. Therefore, it has much realistic significance in having humility as the guidance in criminal reform, and optimistic significance in human rights protection. Chinese criminal reform should be carried out in non-criminalization, non-penalty and mitigation of punishment.The Eighth Amendment of Criminal Law is full of humility:it has amended the communication from the death sentence to life imprisonment in general principles, and ruled that the old above 75 are free from death penalty in the general case, and juveniles are free from criminal record report, and annulled death penalty under 13 counts and so on, in order to overcome laying particular stress on death penalty.