On The Criminal Principles Of Necessity

In the norms system of criminal law, necessity means that only when criminal lawmerely adjusts these behaviors which serious violate the legal interests and not effectivelyadjusted by other social norms could achieve the purpose of the criminal law to protect legalinterests. Suiting punishment to crime is also required by necessity. Fundamentally speaking,the criminal principle of necessity is determined by the objective of criminal law. The meansto achieve the purpose of the criminal law is realistic basis of necessity, while the adjustmentobject which is determined by penal objective and its implementation approach is directsource of necessity. Through formulating penal law and playing its deterrent effect, we canachieve the purpose of protecting the legal interests. The deterrence of criminal law comesfrom criminal label and penalty. The purpose of the criminal law as well as its achievingmeans limits the adjustment object. Firstly, in order to playing the deterrent effect of criminallabels effectively, we should take as little behavior to be criminal act as possible. So thecriminal law merely adjusts these behaviors which serious violate the legal interests.Moreover, the criminal law will keep modest if these acts could effectively adjusted by othersocial norms. Secondly, the criminal law must adjust these acts, or else the protection of legalinterests can not be realized and the existence of criminal law itself will be questioned. Whatis more, the criminal law chooses to limit or deprive the offender’s legal interests such asliberty, property, and even life to protect the legal interests of all the members of society,perpetrators included. In order to easing antinomy relationship between means and ends, onlywhen protecting the legal interests of the vast majority of members of society could sacrificethe offenders’ human rights. And such sacrifice should just enough to protect the legalinterests of the vast majority of members of the society, in other words, the punishment shouldadapt to the crime. At last, only when we suit the punishment to crime will there be a positivecorrelation between the deterrent effect of penalties and the strength of punishment.Based on above demonstration the author explains the specific meaning of the criminalprinciples of necessity in the second part of the article. Having compared the criminalprinciple of necessity with the modest and restrained principle, the author advocates replacingthe latter with the former. Then the author discusses the position of necessity principle incriminal law theory and the relationship between the principle of legality and the principle of necessity in Chinese criminal law. The criminal principle of necessity is a powerful reason toexpel such actions which comply with the provisions of the Criminal Code but without anysubstantive wrongfulness from crimes. The third part is about the role of the criminalprinciples of necessity in the legislative side and judicial side. The last part is the epilogue.The author speaks highly of the value of necessity in a society ruled by reasonable law.The author attempts to justify the criminal principles of necessity in this paper. The mostimportant theoretical significance to study the principle of necessity is that it is an effectiveanalysis tool in criminal legislation and judicature. This thesis applies for the method ofliterature research. Sometimes also adopt the inductive and deductive inference. Afteranalyses the objective of criminal law, deterrence mechanism of criminal law and theadjustment object, the author discovers that the criminal principles of necessity isdetermined by criminal law itself rather than the effect of the tolerance legislators. There areplenty of reasons to replace modest and restrained principle with necessity principle.