On The Penalty Power Of Abstinence Under The Theory Of Human Rights

Under the background of the human rights theory development, with the humanrights theory as the guide, around the penalty power temperance this problem, frominside and outside the penalty power two angles of the theoretical research on thispaper.This paper expounds the concept and the penalty power moderate basis, analyzesthe theory from the origin of the right of punishment. The penalty power is the nationalpublic power, blow and punishment of the crime. In fact, power is not only limited, itmay also be a crazy. If power limited and will be crazy, so the power of the temperanceis a real problem, and necessary.From the internal perspective penalty power, namely discuss to the point of therestraining criminal law. Based on the dualism of the punishment function, therestraining theory become the temperance penalty power of the best internal theory:abstinence is the basic requirement of the penalty power, and the austerity is the penaltypower and intrinsic motivation.From the external perspective of penalty power, discuss to power, right, or liabilitythree aspects."Power--right--responsibility", this is the penalty power external relationsof the layers of reflection. The first relations: the penalty power and power. The penaltypower belongs to the one of power, and power has overlapping part, but the powerrange is more than the penalty power. The second relations: the penalty power and right.The penalty power can deprived offenders life, or freedom, or property, but also toprotect the most people’s life, liberty and property. The third relations: the penaltypower and responsibility. The penalty power is not simply, also bear the maintain socialstability, security moral bottom line, realize the important mission of legal function.The penalty power temperance approach. First of all by recognizing thatpunishment general rules of the punishment to the general direction of the developmentpath, choose suitable for China’s national conditions of the path. Through the triplesecurity, strengthen the path of really feasibility. The transformation of the notion ofpunishment and reconstituted is the penalty power and thought guarantee, the reform ofand complete the criminal procedure law is the penalty power temperance of procedureguarantee, the penalty discretion is the penalty power temperance entity security.