The Basis And Applicaion Of Heavier Punishment Of Recidivism

It has been a long time since the recidivism system was a very important penal system inthe criminal law of many countries. Currently, the prevailing punishment principle forrecidivism is the strict punishment. However, due to the use of different types of the recidivistsystem, there are many differences between the concrete prescription of establishmentconditions and punishment principle of recidivism in different countries. At the same time, inthe academic areas of criminal law, divergent opinions about the theoretical basis of thepunishment principle are held: social hamfulness saying, personal dangerousness saying,unifying the subjective malignant and personal dangerousness saying are supported bydifferent jurists. In China, the jurists’ attitudes about the dangerousness of the person arechanging from disagreeing to general acceptance, but the recidivist system in our country hasno mention of this factor. This article analyzes the deficiencies of recidivism system,expounds and proves the necessity of introducing the personal dangerousness into ourcountry’s recidivism system, and poses the specific suggestions about perfecting our country’slegislation and current stipulation of proper application from doing textual research of the rootof recidivism system. The full text is27000words, which is divided into the following severalparts:The first part of this essay will talk about the basic research of recidivism system. Firstof all, the two basic types of recidivism systems which are the behavior centre theory ofrecidivism system and actor centre of the recidivism system are analyzed from aspects of theconcepts, the establishment of conditions, starting with the comparison of legislation system.Then the core difference can be obtained which is whether to use the personal risk factor;Moreover, examining and analyzing the establishing conditions of recidivism conditions, thearticle points out that, after the issuing of amendment (eight) of the criminal law, therequirements of the main elements of recidivism have been changed. This amendmentexcludes the minor recidivism but not comment on the unit recidivist. Finally, according tothe theory about the punishment principle of recidivism, there are different opinions in thearea of criminal law about the basis for imposing a heavier punishment on recidivist, such associal harmfulness, personal danger, subjective malignant and personal danger said. Throughspecific analysis of the above three parts, the author argues that the dangerousness of the person is reasonable.The second part will analyze the deficiency of the recidivist system in China. The articlefirstly tries to discover the deficiencies about recidivism system, and then analyzes theessence of these deficiencies. The objective factors not the subjective ones are emphasized fordeciding the establishment of the recidivism; the flexibility is lacked when imposing a heavierpunishment. These are all rooted from the absence of personal danger factors in the recidivistsystem in our country. Therefore, it is necessary to introduce the personal risk factors into therecidivist system in China.The third part discusses legislative suggestions about the current recidivist system.Through the correct assessment and setting personal risk characterization, a train of thought isprovided to perfect the recidivist system of China. The introduction of personal risk factorsinto the recidivist system in our country will inevitably lead to the change of recidivism,especially two aspects which are the subjective elements, the punishment. Through learningfrom the legislative experience from foreign countries, the authors’ own views will beprovided about the perfection of the establishment conditions of recidivist in China.The fourth part discusses, under the current legislative framework, the applicablesuggestions for the recidivist system in China. The legislative lag requires that we should baseon the existing system as far as possible and apply reasonably. Although" guidance onsentencing" stipulated the criteria about flexibility of imposing the heavier punishment onrecidivism, the factors which reflect dangerousness of the person of criminals are notconsidered, and these factors which reflect the personal risk was the key for deciding thepossibility of offending the criminal law again. The author claims that characterization thepersonal risk should be combined and applied for discretionary when considering thecircumstances of sentencing.