The Basis Of Formation Of Criminal Reconciliation And The Breakthrough In The Concept Of The Traditional Criminal Law

Criminal reconciliation is a term with a long history. Since mankind came into being, thecriminal reconciliation has existed in society. So far, under the construction of a "harmonioussociety", the criminal reconciliation is widely used as a means of dispute resolution, whichenjoys unique significance and favorable social repercussions. The use of criminalreconciliation has become more and more popular. However, one must those underlyingreasons besides this phenomenon. Besides its own advantages, one must explore the reasonswhy criminal reconciliation came into being, the distinction from concept of traditionalcriminal law and its value, in order to better provide theoretical support for the developmentof the criminal reconciliation.This essay begins with the definition of criminal reconciliation, followed by the reviewof its history, the analysis of reason of its formation, and the comparison with the concept oftraditional criminal law, which proves its rationality and necessity. This essay is comprised of4parts, namely, Introduction, Main Body, Conclusion and Acknowledgements. As the essay’score, the Main Body fall into5parts.Part1The definition of criminal reconciliation. The author interpreted "criminal" and"reconciliation" under the traditional Chinese concept of harmony; then, colleted andcommented on the mainstream viewpoints on the definition of criminal reconciliation in theacademic world, redefine the term from both broad and narrow sense, and analyzed thesimilar concept of penal mediation. In this way, the author concluded the definition ofcriminal reconciliation as that in criminal cases, the victim and the perpetrator negotiate on avoluntary and equal basis, and reach civil compensation agreement under the guidance of law,which will in turn influence the final judiciary judge on the criminal responsibility of theperpetrator.Part2The history of the criminal reconciliation. By digging into the history, the author hasrecorded the4periods in the whole process of criminal reconciliation including emerging,flourishing, fading and reviving, which interpreted its root cause and historical continuity.Due to the progress of human civilization, the dispute resolution transformed from the veryearly "an eye for an eye" revenge to the later fines reconciliation. However, along with the recovery of the national power of punishment, criminal reconciliation has been put aside. Bythe mid-twentieth century, because of the defects of the traditional criminal law theory, thegrowing emphasis on the rights of the victims and the requirement to improve judicialefficiency, criminal reconciliation has reemerge and developed fast.Part3The basis of formation of criminal reconciliation. The formation of it can be influencedby many factors, such as the difference of cultural ideology, geographical space. The authormay analyze the issue from both the eastern and western views, which are separated by thespace. In the West, these three theories, the restoration of justice, balance and narrative, serveas theoretical support for criminal reconciliation. Restoration justice theory emphasizes therepair of damage to social relations; the balance theory emphasizes the reconstruction ofbalance broken by the crime; Narrative theory emphasized by the victim’s talking to theoffender to ease the tension. However, due to the flaws in balance theory and narrative theory,restorative justice theory has long been predominant, and has become almost the sole basis ofthe criminal reconciliation in a very long period of time. The factors leading to the formationof criminal reconciliation are as follows:1,"Harmony" is a cultural foundation of criminalreconciliation;2,"dropping a lawsuit","advised litigation" are the basis of the concept ofcriminal reconciliation; The pursuit of economic efficiency and seeking social stability arethe social basis of the criminal reconciliation; Unity of rites and laws is the ethical basis ofthe criminal reconciliation;"Harmonious society" and "Leniency" are the political concernfor criminal reconciliation.Part4The breakthrough of the criminal reconciliation in the pursuit of value of the traditionalcriminal lawDue to the limitations of the traditional idea of criminal law, which prevented thevalues such as fairness, justice, freedom and order from being manifested by the traditionalcriminal law. Therefore, criminal reconciliation has re-interpreted the values mentioned aboveand blend them together. Judging from the value orientation, there are reasons for victims,perpetrators, public power to choose the criminal reconciliation. It is also an inevitable trendgiven national circumstances, the economy of the judicial resources and complete solution ofthe social problems.Part5The breakthrough of the criminal reconciliation in the theory of the traditional criminal law.The author starts from the conclusion of essence of crime and criminal responsibility bythe traditional criminal law theory, then interpreted the traditional criminal law theory,compared with the theory of criminal reconciliation, found the breakthrough in the criminalreconciliation theory against the traditional ones, and summarized the superiority of thetheory of criminal reconciliation.