Applicable Research Of Theory Of Social Harmfulness In Sentencing

Long-term social harmfulness theory in criminal law in our country is in a veryimportant position, however, with97of the criminal law promulgated, the establishment ofthe principle of a legally prescribed punishment principle, the abolition of analogy, this theoryalso with doubt, question focuses on the necessity of its existence question, the reasons forthis situation is largely on the theory of understanding deviation, even said to be amisunderstanding. One thing is indisputable:"size of social harmfulness is the social public toall sorts of crimes for the issue of concern, is the primary criterion reflects its social tolerance,therefore, the social harmfulness is regarded as the essential feature of crime has become of,at the same time, crime size but also on social harmfulness size." From this perspective, thesocial harmfulness in judicial practice of sentencing of our country has a very importantguiding significance in sentencing, the theory of social harmfulness is indispensable, becausethe kinds of punishment and the size of the amplitude is harmful to the society in a virtualreduced, the weight of the penalty of the size of the social harmfulness, fairness and justice isfinally be inflicted upon the actual through the criminal penalty and manifest. From this sense,sentencing link importance is self-evident. Based on this, the author from the perspective ofcomprehensive to understand and study of the theory.The first part from the theory of social harmfulness theory of battle as a starting point,narrates the social harmfulness theory, the source of the topic and the research background,expounds the research purpose and meaning of this issue, in particular, the author thinks thatthis topic research has very important practical meaning and theoretical significance. Inliterature review section, the domestic and foreign research present situation has carried onthe transverse comparison of this issue, in order to more comprehensive and objectiveunderstanding of this theory. In the first part of the last section, the author combined with thestudy in this paper, the main innovation points.The second part discusses the concept of social harmfulness, attributes and their sources,the first concept is to open a a key to the door of the unknown, and to the understanding of thetheory has a profound reason, we must start from the understanding of the concept, theory ofsocial harmfulness in our country criminal law educational world mainly exist in legal interests, said fact, attributes, such as several point of view, this article on the analysis of thetheories in detail, and on this basis to the theory made a simple evaluation. Then in the secondpart of this paper analyzes the attributes of the theory, put forward:"the social harmfulness isa fact and value judgement".Are presented in the third section, critics of social harmfulness from the point of view,this part is the sublimation of the first part, to the theory of substantive issues, for the negativepoint of view, the author denied them one by one. Next, this paper argues that, if you want tomake the theory to work, to do scientific and unified in the evaluation standard, first of all toconform to the principle of balanced, secondly should attach great importance to the people ofthe theory of evaluation and ethical, insisting on behavior and harm the fact standard doubleevaluation mechanism. Meet the needs of the social harmfulness theory value can behighlighted in sentencing, can not only to keep the normal social order, but also can realizethe tolerance of sex in the criminal law, realize the value of individual justice demands.The fourth part, based on theory of social harmfulness in sentencing the concreteapplicable put forward Suggestions to improve it, first in terms of legislation should beapplication of the theory of social harmfulness, especially for the regulation of crime amountshould be in the economic development of the society at that time to determine the size of theharmful to the society. Second, the judge in the judicial practice on the sentence shall bedetermined under the condition of the criminal suspect harmful to the society, in combinationwith the sentencing of article61of the criminal law principle to determine the criminalpunishment. Finally the judge to correctly understand the meaning of proviso of part of thecriminal law, correct use of social harmfulness is not big, obviously minor does not constitutea crime.