Tolerance·Shu Dao And The Restruction Of The Criminal Policy Of Combining Punishment With Leniency

The significant way of the development and the modernization of the rule of lawis reform, the same as reform of the criminal law. The Amendments to the criminalLaw（8）was enacted in2011, which reflect reform of the criminal law met the needsof the criminal policy. The criminal policy of combining punishment with leniencyhas become the point of criminal law reform, which has been spread rapidly and ledto develop large argument. There are many researches on the connotation, historicalform and the nature of criminal policy of combining punishment with leniency. Also,there are many studies on performance and mechanism of it. As I see, theseresearches lack in self-examination about whether ‘leniency’ of criminal policy ofcombining punishment with leniency may really play a part in punishment, orcriminal policy itself exist some questions. So, it brings us some paradox conclusionsabout how to comprehend criminal policy of combining punishment with leniency.Firstly, the article explores the process of historical form of criminal policy ofcombining punishment with leniency. And then the article analyses characteristics ofperformance and notion of criminal policy of combining punishment with leniency.The tentative conclusion here is that criminal policy of combining punishment withleniency, in our country now, has some characteristics. Those characteristics are: thepolitical criminal notion as ‘friends and foe’, the nature orientation which ispolitical-driven, rectifying crime which stress prevent crime as the goal, the mass linewhich public opinion as a leading factor, and nationalism. But, some aspects of thosecharacteristics deviate from the basic spirits of contemporary the rule of law：Differentiating ‘friends and foe’ as the basis of the political criminal notion mayregard criminals, will be punished severely, as the foes of the state and the society.The criminal policy, which nature orientation is political-driven, may also limit itsfunction. In order to achieve the social goals of crime prevention, it is beenemphasized that we should punish criminals. This measure, which seems tolerant, infact, expends the power of the state and punishes criminals more severely. The mass line, which consider public opinion as a leading factor may be dangerous, too.Because that mass line may beyond the law and has no restriction at all. Nationalismmay lead that the rights and benefits of criminals，victims and other litigants probablybe ignored or in a subordinate position. To a large extent, the goal that protect thehuman rights and treat criminals with tolerance could not achieve at all. It is only aslogan.Secondly, the article criticizes these questions. There are some morefundamental theories dominate these questions. Specifically, it has over self-confidentfor human rationality, even to extreme degree. The state stands at the commandingheight of morality. The states not only punish criminals, but also redeem andreconstruct criminals. But it may lead to confuse law with morality. To differentiate‘friends and foe’ as the basis of the political criminal notion may regard criminals,who will be punished severely, as the foes of the state and the society. In fact, itmakes criminal as a tool, and makes crime as object. It also regards crime as theopposite of the state and society.At last, the article advances to use the awareness of tolerance and Shu Dao toreconstruct the notion of criminal policy. The awareness of tolerance is based on thediversity of human and the world, based on the relativity of the truth, based on themulti-faceted nature of human nature. The awareness of tolerance is a rational,sensible way of thinking, behavior and attitude about life. The fundamental meaningand core purport of the awareness of tolerance is that：Recognizing and respectingpeople as human, respecting human as humanity and his dignity, respecting otherpeople have their subject status. The spirit of Shu Dao has transformed for adapting tothe modernization. The meaning of Shu Dao is ‘Someone does not want, so you donot give.’ It has coherence between the awareness of tolerance and Shu Dao. Thenotion of criminal policy of combining punishment with leniency which has theawareness of tolerance and Shu Dao has its rich content. It can be summarized as:bounded rationality，the boundary of morality and the recurrence of subject. And thus,under the dominating notion, the criminal policy of combining punishment withleniency has also changed. The characteristics are: the notion of criminal law whichwe can be our own master, the nature orientation which is law-driven, the goal is neutrality and based on parties. Also, the criminal policy of combining punishmentwith leniency, now in our country, needs the awareness of tolerance and Shu Dao. Itshould start out to change. Practicing the awareness of tolerance and Shu Dao ofcriminal law gradually is needed. Criminal law should accord with the spirit of themodern rule of law. Besides, the modern society and the rule of law emphasize thevalue of human and the dignity of human. Only pursuing this can we achieve the legalsystem of criminal.