The Rationality Of Checks And Balances: Social Protection And The Guarantee Of Human Rights In Game

Thought, science, the advance of civilization is always closely related to the socialchange; the science of criminal law is no exception. After the Second WorldWar, Human beings reflect on history profoundly, human rights consciousness is all-time andrising, especially in the field of criminal law, various countries begin to reflect upon andcorrect the universal tendency of criminal law, breaking the law absolutely socialcontrol beliefs and too high expectations. Now, the criminal law is the guarantee of humanrights in the Great Charter, and should be the social control of the "last resort", this hasbecome a common idea and is highly valued. Based on the scientific understanding of Socialprotection function and human rights guarantee function of the criminal law of duality, onpenalty of demand, eliminate low inadequate punishment; on the penalty ofrestriction, forbid excessive punishment and severe punishment, criminal lawmodest behoove becomes value goal pursuit of modern criminal law. The light the heavy,social protection of criminal law and human rights guarantee function of the dynamic gamebecome inevitable. the best choice is to achieve a win-win situation in the protectionand guarantee of game balance.Tracing back to history, we will find, the criminal law often cycle functionbetween tough and tolerance. The criminal law is restrained or indulgence, the choice thatlegislator and judicial personnel implement criminal policy, which is based on the socialmaterial living conditions. Social adjustment system is perfect, mature technology under therule of law, the law only as a whole presents a confident tolerance. In the current transitionperiod, the criminal law should maintain restraint? or the aggressive? or restraint andaggressiveness in the game checks and balances do relatively reasonable choice? It is adifficult problem for China and the countries all over the world.“Destroying the old andestablishing the new” must intensify the conflict, leading to disorder even out-of-sequencequestions emerge, the old system is broken, the corresponding new criteria have not builtup, new and old alternate join occurs fault inevitably, In the anomie and Regulation of thecontrary paradoxes, where the criminal law to go? The author thinks that in fact is a dynamicgame process of pursuing rational balance.The article is constituted by the three parts which are the introduction, the body and postscript, the body is divided into four parts. Specifically:In the first part, the author gives a basic overview of the restraining criminal law. Theauthor first along the historical context to make a brief introduction of the restraining criminallaw; Secondly, the author elaborates the concept of restraining criminal law mainly from threeaspects, the implication, the scope(SCOPE), the development trend from the perspective ofcriminal integration; Finally, from the micro level criminal law: two dimensions of crime andpunishment,, the macro level criminal law: criminal law and freedom, constitutionalism anddemocracy in three dimensions, Analyzes the legal and social basis of restraining criminallaw.In the second part, with the social protection of criminal law and human rights guaranteefunction as the carrier, discusses the restraint of criminal law. First of all, the author brieflyanalyzes the function of social protection(public interests and personal interests) in criminallaw; Secondly, discusses the human rights guarantee function of criminal law, focusing onthe human rights guarantee to criminal suspect under The constitution dimension--thesource of restraining criminal law; Finally, based on the social protection of criminal law andhuman rights guarantee of paradox, it is concluded that austerity of criminal law surelybecome the harmonious and unified balance in "scale".The third part on the basis of the second part, on the ground of restraining criminallaw play a balancing role in the society and human rights protection for further analysis. Firstof all, the author analyzes the human rights guarantee and social protection Reflected inthe conflict representation: the restraining criminal law and criminal law expansion inthe social reality normal coexist, zero-sum. From three aspects, the transformation of socialeconomy, civil rights awareness and the criminal law’s own law of development, make a briefanalysis on the causes of conflict; Secondly, the author uses game balance as the mainline, From four aspects: the unity of opposites of right and power, The restraining criminallaw to target, macro social adjustment system in the criminal law should be dutiful,medium under the criminal policy of ’strict but not severe’ the net of justice is a rationalchoice, micro criminal and civil relations of obligation standard and right standard afterweighing the advantages and disadvantages of adhering to social standard"contract" development, The game Criminal conflict resolution participation main body in theprocess of the parties (the state organs and the accused person, the offender and thevictim).Mainly discusses restraining criminal law in our country, the current "social protection and human rights guarantee cannot be ignored, criminal justice should be more towardshuman rights guarantee" in the judicial practice to realize the balanced possible and necessary;Finally conclude, the restraining criminal law promote social protection and human rightsguarantee finally towards a win-win game.The fourth part based on the above the first, second and third part, from the visual,procuratorial organs prosecution empirical analysis to the restraint of criminal law in thejudicial implementation to do analysis, Owing to space limitations, only positions therealization of the restraint of criminal law in the exercise procuratorial authority. Firstly, fromthe criminal ideas of Judicial personnel, The legal system design, modest people (judges) andsystem integration three aspects, making a brief analysis on the basis of the restrainingcriminal law implementation in the judicial process; Secondly, from The restraint of criminallaw in our country judicial theoretical barriers to implementation, The obstacles to entity,procedure of legislation and the linkage between the legislative and judicial In the judicialoperation, The procedure of judicial practice the idea of human rights guarantee, theprocuratorial power system obstacles three aspects, Selective and focused on the restraint ofcriminal law in the judicial implementation problems do systematic elaboration; Finally,follow the logic to analyze and solve problems, from Cultivating procuratorial organs of theausterity of criminal law idea, The procuratorial organ before the examination and prosecution:Strengthen the legal procedure diversion, Improve the procuratorial supervision andprocuratorial suggestion; In the examination and prosecution: through standard interpretationand applicability of the law, not to prosecute discretion and criminal reconciliation discretion;After the examination and prosecution: the establishment of the sentencing proposal system,the pursuit of restorative justice and moderation of penalty four aspects. Seeking therestraining criminal law implementation path In the exercise of the right of prosecution.