On The Non-penalty Punishment

In our country, the criminal law emphasizes on the deterrent very seriously, and the attention to the concept of function of penalty is very popular. When the realization of criminal responsibility, the judiciaries also over-reliance on the application of penalties. This belief is so strong and deep, that the penal system is too monotonous, and there is a phenomenon serious defect in structure of system. Besides, the system couldn't reflect effectively the diversity demands of society. However, non-criminalization, light-punishment and non-penalization have become world trends of the healthy development of in criminal law. The Criminal Law should also adapt to the context. As an ideal alternative measures, non-penalty punishment apply to the minor crime which doesn't require penalty punishment. It not only can meet the traditional retribution concept, but also can prevent the crime effectively and restore the social relations which have been destroyed by crime. The thesis can be mainly divided into four parts:The first part analyzes the definition and the current legislation of non-penalty punishments. To the definition, non-penalty punishment, which is included in criminal law or relevant law, the authorities directly apply or recommended other departments to apply, is the overall title that doesn't belong to the main penalties and additional penalties. To the current legislation, non-penalty punishment shows in different kind of forms, there are many kinds could been referenced when constructing the non-penalty punishment system in our country.The second part mainly clarifies the basic theory of non-penalty punishment. The construction system is the important part of the thesis, and also is theoretical guidance for constructing the non-penalty punishment system to enrich the penalty system. Generally, non-penalty punishment has five aspects advantages。First, it fits the requirements to achieve the purpose of penalty. Second, it meets the economic requirements of penalties. Third, it coincides with the idea of the individualized penalty trend. Forth, it meets the requirements of the contract of the criminal code: traditional values think the Criminal Law as final barrier to maintenance of stability and protect other law to come true, and it reflects the tool value of Criminal Law; as a new proposition, the contract of the criminal code grant to Criminal Law some new mission and provide broader theoretical space to non-penalty punishment system's establishment and development. Finally, the diversification of the penal system demand provides system space for non-penalty punishment.The third part elaborates the nature and purpose of non-penalty punishment. The traditional concept and the literal meaning all admit the non-penalty punishment has the feature of non-penalty. In this part, the thesis thinks non-penalty punishment has two features:one is the feature of non-penalty, the other is penalty, and the two sides are unity. Besides, the aim of non-penalty punishment is defined as the recovery of legal interest.The forth part mainly researches non-penalty punishment's progress. In the Criminal Law, there are only some scattered measures. Based on the principles of establishing and improving of non-penalty punishment system, the thesis gives some proposes from criminal legislation, criminal justice and criminal policy. In criminal legislation, we should rich the types of measures and the implementation of rules. In criminal justice, the courts and judges could make some creative judgments wisely, such as judgment of planting trees.The research about non-penalty punishment has adjuvant effect to penal reform in China. The diversity demand of penal reform provides system requirements. We know, the penalty system is "severe but not strict", and the aim of penal reform is to change this situation. Meanwhile, the non-penalty punishment system's goal is to protect the legal interest (including the offender's right and victims'interest). We can see there are many similarities, and the two goals can promote each other and complement each other. We hope the research on non-penalty punishment can give some propositions to achieve the aim of penal reform.