Use Of Informal Punishment In Judicial Process

"Informal punishment" is outside the legal punishment, relative to the formalpunishment, which is the concept of legal punishment and proposed, specifically refersto from the informal social normal, such as the customs, practices, ethics, morality,etiquette, custom, religious taboos, applied by the private, social groups,non-governmental organizations or representative. The form of the "Informalpunishment" includes body of penalty, property penalty, qualification penalty andreputation penalty. Informal punishment based on the endogenous social local resources,by the selection of social groups in the long-term social and historical evolution ofnatural to stay, although there is no national public power as the backing, but by relyingon the informal system, the informal system itself deterrent still playing the power thatlaw can not be replaced. Although "Law Center Theory" want to build a universal lawand social ideal of Utopia, but this is clearly unrealistic, which has been demonstratedsince90’s of last century scholars question the "Law Center Theory", the research in thispaper is based on the above background.In the key period of social transformation, it is a proposition of law interface on thehistory that how to integrate all reasonable and effective resources to realize a benignoperation of social management, state law status is still very authoritative, butlimitations out of national law, rationally examine the punishment function and thedevelopment trend of informal was a wound not open topic. At the same time, weshould also avoid the dangerous trend into two opposite, just as we cannot divide thevarious problems of the social governance to discuss, as a means of social control, thesame can not be divided opposition, the wise choice is to find a connection point thatcan let the two buffer on, but also can avoid the hard friction, this point in the actualjudicial activities. This paper tries to answer the above questions by discussing thenecessity of introducing the informal punishment in judicial process, and how tooperate.This paper is divided into three parts:The first part mainly discusses the concept of informal punishment and thecomparison between advantages and disadvantages. The concept of informalpunishment includes three aspects at least: the exercise is based on the informal institution; the exercise subject mostly is the third party, the third party including twolevels of meaning, subject to informal punishment decision is both parties of the thirdparty, on the other hand, informal punishment implementation is third party subject;scope of the exercise is beyond the legal punishment. This part also compares theadvantages and disadvantages of informal punishment relative to the legal punishment.The second part mainly discusses the dangerous consequences of excessivedependence on the punishment of law. In this part, a famous movie "scraping" as thebreakthrough point, described as a typical legal complete country--the United States ofAmerica, shown the absurd facing the different cultures of other countries. Intrusion ofexcessive legal punishment on people’s freedom life led to the judicial trust crisis, thejudge should play the referee’s wisdom, then be free from the law of the jungle, makethe procedure more in line with the real social emotional needs.The third part discusses how to use informal punishment of judges in the judicialprocess, which is the focus of this article. This part first analysis the dilemma of thejudge who price strictly according to law compensation for the life as an example; thenmention from a divorce case author side, the judge should how to use the emotionalpunishment in order to achieve the aim of restorative justice; finally analyzes thepostmodern picture in the law, how to punish summary: logic, punishment should takeinto account social emotion and legitimacy; punishment is not in retaliation for who, butto repair the damaged social relations; at the same time, the litigation explosion era, weshould try to avoid the cost of waste, to reduce the cost of justice.