The Study On The Improvement Of The Structure Of Punishment In China

As the object of this article, "Penalty Structure" has it's content and level which actually determine the structure of this article.This concept is very rich in content although it often appear in academic research,so it has brought related research work to the dilemma:simple concept, clear structure but lost in rich, informative, and vice versa.In fact, many of the related articles fall into the trouble from the beginning of devising concepts and structure:Someone believe that "Penalty Structure" is equivalent to types of penalties, range of penalties and combination of penalties types;Others are full of pellmell concepts such as:fine by the day, intermittent imprisonment, decriminalization, standardized sentencing, etc. For these reasons, we Should divides "Penalty Structure" into macro, meso and micro levels, then describes every aspect by logical order. Specifically, the macro-penalty structure should be defined as the ratio of "Penalty Structure"and "Penalty Amount", and it should be divided into four sides according to the different proportion between the two:not strictly and not brutally, brutally but not strictly, strictly and brutally and strictly but not brutally, meanwhile, we pay more attention on fourth type; The meso-penalty structure should be defined as structural relationship of the penalty methods (such as the death penalty, freedom of torture, etc.), and we focus on imprisonment-centered view and imprisonment-and-property-centered view which are widely used in modern countries; The micro -penalty structure should be defined as penalty rate of crimes and the precise trends in penalty legislation deserve our attention. Structured in this way, the level looks simple but systematic and detailed.Improving our penalty structure needs theoretical support, therefore, By the reasonable and orderly framework, we should analysis screening theory and practice of typical countries. For the macro-penalty structure, The "Strictly but not Brutally "mode has it's rationality in combining the retribution and utilitarian aspects of the penalty. For the meso-penalty structure, firstly, The US mode put imprisonment as the centered penalty, we should absorb it's a variety of probation system and the intermittent prison system; Secondly, Germany meso-penalty-structure is the imprisonment-and-property-centered view which made a great success in using its warnings, fines, probation, parole and other means to weaken and adjust the sentence of imprisonment, this is worthy of our study. For the micro-penalty structure, firstly, The Germany characteristic is wide range of penalty legislation and precise sentencing, it's worthy of our attention; Secondly, the accurate tendency in the French criminal legislation worth our considering; Finally, the U.S. federal and states' "Sentencing Guidelines" provides a mechanical, digital sentencing pattern, it has a unique advantage in unify the scale of sentencing.Purposes of this article is to analyse the deficiencies of our current penalty structure and designing specific optimization path. It should based on the actual situation and gain the improving experience. For the macro-penalty structure, firstly, we should pull in "Conversion", "Removing the Rare Crimes" and other practical solutions by the the guidance of "Strictly but not Brutally"; Secondly, we should define controversial acts as criminal or Non-criminal such as "Fail to Rescue", "Euthanasia" etc. to harmonize the relationship of "Strictness" and "Brutality". For the meso-penalty structure, we should learn from American experience to improve "Reeducation through labor", learn from German experience to improve fine system, follow the world trend and practical needs to designe a variety of qualifications penalty to adjuste serious penalties system profoundly in order to achieve a smooth convergence in penalty species and the penalty rate. For the micro-penalty structure, firstly, our criminal Law has logical contradiction in penalty volume between possession crimes and related crimes. It should be that the penalty volume of possession crimes should lower than related crimes, the two kinds of crime should be devided, and penalty volume of possession crimes shouldn't much lower than related crimes. In accordance with these principles, related criminal charges' penalty should be adjusted to make the logical structure more smoothly and rigorous.By amazing coincidence, "The Eighth Amendment to Criminal Law" had been passed by the Eleventh National People's Congress Committee.This major revision refered to a lot of eventful propositions such as restrictions on the death penalty, community corrections, optimization in the system of serious penalties, etc. These propositions are also be detailed in this article. They witnessed the gratifying achievements of criminal legislation and pointed out the development direction of China's criminal legislation.