The Theory Of The Penalty Tolerance

In today’s civilization world, as humane consciousness awakening and human dignity and human rightbecoming the universal value of the law in modern society, the penal system as a part of the civilizationalso evolved gradually from the harsh toward detente. In rationalized reflection, people gradually realizedthe drawbacks of heavy penalty, and gradually abandoned the blind worship of these harsh treatments. Theconcept of tolerance has become widely accepted by the legal scholars around the world and has been givenmore attention and advocacy. Legislation and judicial practice in the world have embodied concept oftolerance and lenience. Modern penal system must focus on the strategy of future social governance, awayfrom the idea of retributivism and utilitarian. Penal system should provide better protection of human rights,so that human society becomes more harmonious.In addition to the introduction and conclusion, the body of the paper is divided into four parts:Part I: First examine the historical origins of the idea of tolerance and leniency in criminal justice system.Today, this concept is still subject to debate, a theoretical system hasn’t been successfully formed. However,in the long history of penalty system development, from the enlightenment thinkers, the classical schooland the empirical school in the ancient Rome to the severe punishment doctrine in the long history of China,the ideas of leniency and tolerance have always been a spark in the criminal justice system and legal theorydevelopment.Part II: Explore the theoretical basis for the lenience and tolerance ideas in criminal penalty. No researchon a society system can be separated from the human nature. In a way, human nature determines all aspectsof the society. Tolerant in penal system is built on the logical that human being can be good and bad. Fromhumanitarian stand point of view, the theoretical basis for the ideas of tolerance can be supported by threeclosely related analyses: first is by analyzing the different views between Eastern and Western whichprovided some historical proof about human nature. This analysis reveals the concept of “good and evilexist side by side” therefore formed the basis and logical standing point for the conclusion that crimes stem from human nature but they can beprevented; the second analysis is from penalty functionality perspective. Given the limited effectiveness ofthe penalties to criminals, victims and the society as a whole, we can establish the base position that penaltyshould be tolerant. The third analysis is from human rights protection perspective. On one hand, humanright protection is the source for criminal penalty. Therefore protection of human rights is the legal basis forthe penalty toward tolerance and lenience. On the other hand, a nation’s penalty right is harm to the societyand need to be limited in order to truly realize human rights protection.Part III: Exam the gap between contemporary China’s legal system and penal tolerance and lenience.Case studies reveal that there are still many problems in realities and there is still much to be improved.Therefore the road of penal reform has a long way to go.Part IV: Analyze the idea of penal tolerance fromthe legislative and penal system improvement perspective, taking into considerations of the reality of ourcountry and the Criminal Law Amendment (8th). First, propose to strictly limit the use of the death penaltyfrom the legislative and judicial perspective. At the same time, based on our country’s reality, suggestpenalties enrichment program in regarding qualifications and fine system. Second, design an explicitsystem based on widely used restorative justice system. By learning from foreign penal system andconsidering the development level of contemporary Chinese penal system, further improve the systemdesign by incorporating the plea bargain, criminal reconciliation system and community corrections systemrespectively. Third,"Criminal Law Amendment (8th)" and the “New Criminal Procedure Law Amendment”made improvement in protection of minors and the elderly, but I believe that the existing system need beimproved continually therefore I made further proposals. Fourth, on the basis of criticism analyzed in theprevious section, learning from foreign experience, proposed humane reform to the prison penalty system,thus truly realize tolerance in the penalties.