The Judicature Rectification Towards Imbalance Of Penalty And Crime

The Traditional Criminal Law theories are studied on through from crime to penalty, and traditional judicial concept also judge the case according to the mode which puts crime before penalty. Therefore, the idea that penalty comes from crime occupies a dominant position in the academic circles. Under the theories traditional relation between crime and penalty, what crime the harmful behavior can constitute only considers the social harmfulness of the behavior, which is called crime constitution reflecting in Criminal Law. Based on this logic, the social harmfulness is the key factor to influence a crime commits or not, and the crime constitution legal standard to measure the social harmfulness. Thus the traditional Criminal Law theories attributed the crime constitution to the crime commit standard. However, studying from the judicial practice, this standard is too unitary to have a leading affect effectively when judging crime constitution. Therefore, it is necessary to change our mind when meeting sophisticated cases. Include the penalty factor to judge crime constitution so that we can relieve the legal injustice caused by the unitary mode of judiciary. Penalty constrains crime is not only the inevitable requirement to describe the basic characteristics of crime, but also the conception of the principle that penalty must adapt to crime. As the basic characteristics of crime, the legitimacy via penalty to punish should not just be based on the theory level of” crime consequence”. The restriction and influence from penalty to judge a crime commits cannot be ignored.This article will be studying in four parts except the introduction and the conclusion.The part one is the description of the cases about penalty doesn’t adapt to crime. Firstly, introduce the balance is the ideal relation situation between penalty and crime, which is based on the dual theory of penalty and crime relation. Then introduce the current status and hazard result from the imbalance of penalty and crime, analyze the cause of this phenomenon, and provide the solution including legislation way and judicature way. The jurisdiction way is called penalty constrains crime, which will be focused on in the main body of this article.The part two, which is closely tied with the part one, will precisely analyze the solution in judicature way. At the same time it will put forward the concept of” penalty constrains crime” and analyze how to relieve the criminal case imbalance via this concept. It is also called the judicature usage and the operation mode.The part three mainly analyzes the legitimacy of the concept necessity. Analyze the rationality from the theory basis, history origin and so on of this concept. The theory basis includes the principle that penalty must adapt to crime, the modesty of Criminal Law, the unity between essence explanation theory and modality explanation theory and so on. The history origin is the law summarized by the writer investigating generous Criminal Law History material, which shows the regularity that penalty come before crime from the angle of China ancient history.The part four claims in practice we should restrict and limit this kind of thinking mode that penalty constrain crime. In order to avoid the recklessly enlarging discretionary power, we should apply it to the certain cases strictly and establish the reference criterion.