On The Value Conflicts Of The Penalty Function And The Choice Of The Legislation

The penalty function means the positive effects on society when penalty wascreated, applies and executed. Before World War II, the penalty function was dividedinto theory of retributivism and theory of utilitarianism. After World War II, theclassification of the traditional functions has been changed. Criminal law experts beganto examine the penalty from the perspective of crime, social and victims. Theclassification of the penalty function of China’s criminal law theory mainly includes thetwo-type functions, the three-type functions, the six-type functions, the seven-typefunctions and the eight-type functions. The defects of the penalty function theoryinclude:1) they are divided by different standards; they are divided into different levels;they do not reveal the nature of the penalty function. The main body of the penaltyfunction should be the indivisible entirety citizens in a country, which include theordinary people, the victims of the offender and the criminal. In contemporary society,the essence of the penalty function means the penalty to meet the needs of all citizensprotecting their human rights. The country selects some effect of the penalty as thefunction of the penalty to protect social order and human rights through the use oflegislature. The penalty achieves these functions by the way of damage to the offender’sbasic rights. The fundamental value of the penalty is that the penalty satisfies the basicneeds of every member of society. These values are deemed to human rights under thenational legal systemsThe basic responsibilities of modern state are to protect the human rights ofcitizens. In modern society, the state in order to protect human rights should becommitted to the prosperity of the economics, the improvement of mechanisms ofrights-protection, and the prevention and punishment of the crime against human rights.Criminal law and penalties can effectively protect the national’s human rights, but theyalso narrowed the scope of freedom and violate the major interests of the offender.There are intense value conflicts in the process of the penalty function which willinevitably sacrifice part of human rights when it protects the human rights of all citizens.Specifically, the functions of punishment and deprivation of the penalty directly damagethe fundamental human rights; the functions of transformation and probation of thepenalty exceedingly damage the fundamental human rights; the functions deterrenceand education of the penalty limit the basic human rights; the function of compensation and comfort of the penalty only means the decrease of the wrathful feelings of thevictims.The penalty values of the country means the country’s attitude towards such valueconflicts of the penalty. Different nature and types of countries may have differentpenalty values the typical penalty values include the values of heavy punishment, thevalues of light punishment and the values of modesty punishment.In general, the statewill take the values of heavy punishment if the penalty was considered to be the primarymeans of management of social; Otherwise, the state will take the values of lightpunishment if the penalty was considered to be the auxiliary means of social governance.These two types of penalty values are the results of the unbalance of the value conflictof the penalty function. The shortcomings of the values of modesty including:1) it lacksspecific standards of "necessity" in the legislation; there is no clear penalty limits aboutthe necessary criminal legislation; it equals to the Proportionate Punishment to Crimes(PPTC), which means to balance the crime and punishment to reach the aim ofpunishment and education. For these reasons, these penalty values are difficult tobalance the value conflict of the penalty function and the penalty function is still builton the excessive damage to the basis human rights.In order to ensure the necessary and reasonableness of the penalty and balance thevalue conflicts of the penalty function, States should follow the “principle of last resort“when penalties are created. The " principle of last resort " holds that the country canput on use the power of penalty only when countries are face with two basic value andboth of which need protection, as the result, the national criminal legislation shouldmeet the following conditions: First, the existence of acts that the law can noteffectively adjust; Second, if no penalty adjustment, the legal system will collapse. Itscontent of these standard include the following two aspects:(1) there are acts ofinfringing upon citizens’ legitimate rights and interests which are impossible to beadjusted by existing legal instruments, otherwise, they will in fact play a role ofencouraging (prizing) these kind of acts;(2) the existing legal system of protecting thefundamental rights of citizens will threatened if not use the penalty to adjust it. Inpractice, there should also be two criteria:(1) members of society generally believe thatsome kind of acts give a threat to their rights.2) the vast majority of citizens think thatcriminal acts can be effectively curbed if the penalty was applied. The “principle of lastresort” has two meanings: First, the “principle of last resort " can provide to the statesthe theoretical and practical standards of the launch of penalty. Second, the “principle of last resort " can effectively alleviate the value conflict of the penalty function.In order to balance the Value conflicts of the penalty function, the followinglegislative proposals should be considered (1)" principle of last resort " as the firstprinciple of criminal legislation;(2) The setting of the penalty should only effectivelycontrol the criminal behavior but not be excessive, in which the uneven penalty,tortureand maltreat should be prohibited by the criminal law;(3) legislation should provideindividualized measurement of penalty and a reasonable and broad set of penalty,improve the system of the measurement of penalty (4) legislation should improve thesystem of commutation and release on parole.