A Study On The Unlimited Fine Under The Double Angles For The Legislation Theory And The Judicial Theory

The unlimited fine is a kind of fine which has no the definite amount. The system ofthe amount of fine in China is built by the unlimited fine, the common fine and theproportionate fine. The proportion of the fine’s appaliance in China is low. The unlimitedfine in China’s criminal law is formulated in a large number. The proportion of the fine’sappaliance in the foreign countries is high. Less countries have formulaten the unlimitedfine in their criminal laws. The advantage of the unlimited fine is as follows: it can ensurethe criminal law’s stability, it is flexibility, it is easier to achive the purpose of theprevention of the re-crime. The disadvantage of the unlimited fine is as follows: it goesagainst the principle of no punishment without law, it goes against the principle of themodesty and restraint of criminal law, it easily leads to the arbitrary and imperiouscriminal law’s appearance.The legislation theory and the judicial theory are two different standpoints in thestudy on the criminal law. We should recommend the judicial theory. Recommending thejudicial theory does not exclude absolutely the legislation theory, the are also unified. Weshould focus on the judicial appliance and the legislation reform of the unlimited fine atthe same time. Now China’s appliance for the unlimited fine exists two problems: thejudgement of the amount is random, the translated of the proportion is no clear. We shouldhold the penalty’s purpose of the retribution and the prevention at the same time on thebasis of clearing the unlimited fine’s characteristic. We also should determinescientifically the amount of the unlimited fine in different penalty stages in the samecrime. The unlimited fine should be repealed in the last, but it needs a process. At first,specificing the unlimited fine’s discretion by the procedual law. Secondly, formulatingbeforehand the system of the penalty’s transformation to acculate the experience of thefine’s appalicance. Thirdly, repealling the unlimited fine in the criminal law.