The Decriminalization Tendency Of Criminal Law-from The Perspective Of Limited Decriminalization In Gambling Crime

Decriminalization is a theory by which a criminal conduct is not deemed to becrime, and the theory only refers to conviction, and the sentencing issue was omitted.Decriminalization can be divided into two categories:"legal decriminalization "and"de-facto decriminalization", and the basic approach of decriminalization can bedivided into "legislative path" and "judicial path". To consider the factors of Chinesesocial development and human rights comprehensively, the article infers that thedecriminalization of certain behaviors can help to limit the applicability of thecriminal law, so as to ensure the autonomy of citizens, and protect human rights.Therefore, the decriminalization theory should be taken into Chinese criminal policy.This article adopts the "limited decriminalization in gambling crime" angle as astarting point to analyze the concept of decriminalization theory, and it’s classification,theoretical foundation, as well as the developments in the theory. The article mainlyuses inductive methods to look into the function of decriminalization theory ofcriminal law in solving whether a conduct is legal or illegal through a certain crimesample. In addition, it also uses the comparative concept method, comparativeargumentation method, data analysis, chart analysis and other argumentation methods,in order to make the arguments much more elaborative, and the logics with clearness,as well as make the opinions much more distinctive. This article is divided into three chapters:Chapter1is based on criminal law, it mainly discusses whether gambling is akind of crime or not, and also it propose the opinion of limiting the decriminalizationof gambling crime."Gambling" and "set up casino" behaviors should be criminalized;while the "gambling industry" should be decriminalized. The contents include: anintroduction to the concept of gambling crime; conclusion on the gambling crimeobjecting; Citations from academia on criminalize and decriminalize in gambling; thereasonableness of limited gambling decriminalization from the perspective of criminalobjectives, criminal law’s function, victimless crime and judicial actuality; incurranceof the decriminalization theory topic.Chapter2, describes the development, concepts, classification and theoreticalbasis of decriminalization theory. Firstly, it introduces the history of decriminalizationtheory by combining the historical change and the social institutional changes in thewest. Then, it gives a comparative analysis on the definition of the decriminalizationin different legal systems, and gets to a suitable concept of decriminalization inChinese legal systems, and furthermore, divides the concept into two basic types:"legal decriminalization" and "de-facto decriminalization"."Legal decriminalization"includes legality in law-making, administrative illegality, civil illegality andneutralization of state attitude.."De-facto decriminalization" covers decriminalizationon prosecution (including change to elements of the prosecution, non-prosecution,suspension of prosecution) and decriminalization on trial (including the change onapplicable laws, minimum sentences, and sentences only with symbols). Finally, thechapters finds four theoretical reasons lie in the decriminalization theory by tracing itssource: liberal ideas, penalty supporting ideas, theory of ultima ratio penalty andprotection of legal interests ideas.Chapter3, illustrates the criminal policy choices based on decriminalization, andthe legislative and judicial paths of decriminalization. Firstly, it discusses thedialectical relationship between decriminalization and incrimination, and analyzes theinfluence it may exerts on the criminal policy choices. Then, it states the three waysfor legislation: setting up the justified cause,attaching the great importance to " proviso clause" for its function to remove the crime, and clarifing thedecriminalization of victimless crime, and the special judicial path which simplyrefers to the changes in litigating procedures and law application.