Research On The Crime And Penalty Conceptions Of Threat To Repeat Offend

To be added as an indispensable condition of Suspension of Sentence in the latest Eighth Amendment of Criminal Law, No Future Threat to Repeat Offend shall be judged formally rather than substantially. The reasons include: it has been included in the evaluation system of criminal law, where to decide the penalty; Suspension of Sentence has a probationary period, thus won’t lead to the abuse of Probation; it shall be applied to a more widely use so as to avert the disadvantages of the short-term Punishment against Liberty.No Future Threat to Repeat Offend shall also be judged qualitatively rather than quantitatively. The reasons include: NO describes a thing which exist or not exist, in a qualitative way; the precondition of Suspension of Sentence is the Relatively Slender Criminal Context, thus there is no risk of the abuse of the system discussed.Theory of Four Element System and theory of Three-level System or Two-level System all have the evaluation of Threat to Repeat Offend included in their evaluation system of criminal law.As to Four Element System, Criminal Responsibility acts as a role of medium between crime and penalty. Both the Constitution of a Crime and Criminal Responsibility provide reasonable basis of penalty, whereas the concept of Threat to Repeat Offend plays a role to describe the basis in detail. That is, to describe both in a qualitative way and in a quantitative way the guilty, in which included or excluded by the Constitutive Requirements. In view of the evaluation objects of Threat to Repeat Offend include subjective element, it is still a category in crime theory.However, the theory has these problems: of vague concept, of indeterminate criterion of Measurement of Penalty and lead to an excessive of Criminal Responsibility in the quantity compared to crime, thus shall be abandoned.In theory of Level System, Criminal Responsibility contains the content of crime and the criminal responsibility from Threat to Repeat Offend, rather than acts as a medium which mentioned above. Thus, Threat to Repeat Offend is departed from crime, and is judged only basing on the element that irrelevant to the Constitutive Requirements. As a result, Possibility to Repeat Offend is divorced from a category in crime theory, but a category in penalty theory or legal consequence theory.The theory is applicable because: first, of more clear-cut of Constitutive Requirements type, evading from judging the element of Constitutive Requirements as a whole; second, illegitimacy, imputability and crime are adequate to describe the quality and quantity of Constitution of a Crime, of no necessary to add the Threat to Repeat Offend to the concept of crime; third, distinguish element of Constitutive Requirements sense from that without, lead to a statutory and accurate measurement of penalty, evading from adding to surplus element or neglecting of necessity; fourth, of a more accurate legal position of Threat to Repeat Offend, and consistent in theory system, refusing a vague concept; fifth, of a more accurate understanding of Criminal Responsibility.Conception of crime and penalty from behaviorist-criminal-law theory can be combined in the evaluation system of behavior-criminal-law theory. It is not the conception of crime but the conception of penalty that matters. There are four theories to explain the problem mentioned, the Theory of the Spirit of Law, the Theory of Exception, the Theory of Judicial Review and the Doctrine of Combination that focus on the Theory of Dot. Among them, the last theory is applicable but should be supplemented in some respects.The Doctrine of Combination combines the penalty that decided by the fact of Constitution of a Crime to the penalty that decided by the fact otherwise, and as a whole to constitute the Criminal Responsibility, which leads to a proper arrangement of the Threat to Repeat Offend in criminal system. As a result, to consider the Threat to Repeat Offend in measurement of penalty becomes a principle. In view of criminal construction, the theory applies behavior-criminal-law theory purely in crime theory, and refuses the evaluation object of crime that irrelevant to Constitution of a Crime. Whereas in penalty theory, it combines the behavior-criminal-law theory and the behaviorist-criminal-law theory, of which properly settles the problem of coexistence of double-penalty when it has only one crime. Also, it can evade the defects from other theories. However, it shall be properly dealt with the relation between statutory circumstances of measurement of penalty and discretionary circumstances of measurement of penalty, and between the existence and the quantity of Threat to Repeat Offend.