Reflection And Reconstruction Of The Theory Of The Purpose Of Punishment

Postgraduate:Shizeng Liu Supervisor:Hongbin Jiang Specialized:Juris Master Grade:2012The purpose of punishment is the core issues of the theory of penalty,it has an important guiding significance in creatting the penalty,discretionary and the implementation.Objective To determine the sentence by a rational systematic review,and such a theory penalty phase of China's penal system specific gathering,and there is no doubt that it is of great theoretical and practical value.The first in the first section of chapter of this article aims to clarify the concept of punishment,in-depth study on this basis,the purpose of punishment Ontology characteristics and research value,and use it as penalty for the purpose of study and establish a rational coordinates.Objective To determine the sentence by a systematic rational look at these issues is the penalty for the purpose of sorting out a systematic study of theoretical premises.Countries are looking to achieve the objective effect of the penalty must rely on criminal legislation,criminal justice and criminal law enforcement of the entire process,the three links is the penalty for running an organic whole,all sectors although independent of each other,but interrelated and interdependent with each other intermediation.The lack of any one part of the state is difficult to establish penalties for the purpose of a comprehensive follow-up implementation.Therefore,the penalty should be aimed at a broader perspective to be looked at,this article aims to adopt a broad concept of punishment that the so-called penalty is intended to refer to the state legislature to set penalties,the people's court for penalties and penalties enforcement authorities expect to achieve the purpose of enforcement of the sentence.The first sentence of Chapter ? will be at home and abroad for the purpose of Review of various theories.The Western countries on the purpose of the theory of punishment experienced retribution doctrine doctrine of prevention as well as the theory of evolution of eclecticism.Which retributivism within the theory of divine retribution,moral retribution theory,the legal retribution on the distinction.There are two-sided doctrine of prevention prevention,general prevention and special prevention theories of difference.The eclecticism trying to retributivism theory of coordination and prevention,but in the process of co-ordination were also different views,forming a lot of theory.China's criminal law penalties for the purpose of academic views on the very non-uniform,how to rationally define the purpose of penalties has been the focus of China's criminal law academic debate.Many scholars to multi-angle thinking,from a different path,the path of the penalty purposes related discussion,the formation of penalty reform that re-education,said the purpose of hierarchy of punishment,the penalty the purpose of dualism,the dual purpose of prevention,said.This second section of chapter focused on the viewpoints of the sort and evaluate the purpose of China's criminal law theory in the study sentences and path selection of the premise that there are two errors,first of all.Chinese scholars confused criminal property by misunderstand the punished,education reform,and other dpenalty function and penalty for the purpose of these three interrelated differences between the concepts.In the theoretical starting point of the penalty constitutes a misreading of the purpose of the concept,and secondly,China has a penalty for the purpose of artificially scholars are divided into several levels,mainly on two levels and three levels on the two theories.The purpose of this penalty level of theory in itself there are many logical confusion,the purpose of theoretical research in penalty exists for path selection errors.Section ? of this chapter focused on China's Tong said the penalty for the purpose of the theory of reflection,first of all,care and justice and by utilitarian purpose of our penalty-tung says that one of the major drawbacks of the purpose of our penalty-pass,said the theory that the sentence was aimed at the general prevention and special a combination of prevention,thereby excluding the retributive purpose of criminal punishment exists in theory in the space.Retributive punishment theory in order to achieve its fundamental purpose of social justice,in the penalty applicable to the punished in the same,be reflected in balance of crime."Justice is the first value of the social system,just as the primary value of truth is the same ideology.A theory,no matter how sophisticated and simple,as long as it is untrue.It must be rejected or amended;Similarly,certain laws and institutions,regardless of how they are efficient and organized,as long as they do not justice,it must be or abolished.,"Second,the general prevention should not be a penalty for the purpose of,first,the penalty purposes and subject matter as a criminal to justify the purpose of punishment is not on the same concept,both on general discussion of the theory of prevention need to clarify,the objective of criminal law in general preventive effect may be According to provide proof to justify the basis of its national development,the discretion of the implementation of the penalty goal to pursue is not the same concept;second,based on retribution Punishment theory,to achieve a just retribution on the offender,the penalty reflects the balance of the crime and punishment can be achieved in general preventi-ve effect,therefore,the general preventive effect of punishment is just retribution existence dependency is the retribution brought about by the additional effect of punishment;third,the penalty does not have blind faith in the people of the tremendous deterrent effect of criminal law in general to prevent a large extent,is simply an abstract illusion.Fourth,as with general prevention of potential perpetrators,victims and other law-abiding citizens for the role of the object,and special people to prevent crime,the role of the sole reality of the object,which determines that a natural contradiction between the two,and Conflict.Finally,based on the general theory will lead to the prevention of crime prevention against the others were to become a tool,no doubt,this is already a departure from the sentence "always think of humanity as an end rather more than just a means to deal with" humanitarian requirements,inconsistent with the values of justice.Will be excluded from general preventive purposes other than punishment,this article re-positioning general prevention.General prevention rests essentially on the determination of criminal norms and sense of fairness norms.In the justice and the utility carry on the penalty value under the localization premise,this article believed that the justice provided the right basis for the penalty to the retribution goal's pursue,the utility to specially prevent into penalty's goal to give reasonable showing.The penalty goal should above retribution's foundation,base on the already crime,followed the crime punishment balanced principle,in retribution just scope,proper attention to both penalty special prevention need.The so-called penalty goal take the retribution punishment as the premise and the foundation,is refers to take the retribution punishment establishes the agent and the political line as the penalty.The penalty agent,namely the penalty condemns or the absolution take the retribution as a limit,judges the basis take the criminality objective hazardous nature as the penalty,cannot only prevent but the goal the punishment or is punished;Penalty's political line is the social populace's just emotion,namely the penalty weight must with the people heart in the simple retribution's legal emotion match case.Penalty's ceiling cannot surmount the populace cognition the just retribution limit.The so-called proper attention to both special prevention's need,is in take the just retribution as between the foundation penalty political line and the winding,the reference special prevention's need,dynamic adjusts penalty's quantity in the process which the penalty exists.In reality,between each kind of penalty's concrete coordinated nature cannot leave the penalty goal the instruction,the penalty retribution and special prevention these two goals,plans one for the legal punishment scope to arrive at the heavy system leniently,carries on the reasonable disposition to the penalty structure;In the penalty formulates,decides after deliberation as well as in the execution process,the penalty goal insisted as a whole the retribution is a foundation,the special prevention for under the supplement premise,the concrete each stage should differ from to the retribution as well as the special prevention's demand;In addition,must refer to the current social situation in the penalty goal's implementation,adopts the criminal integration the viewpoint,through criminal law around comprehensive,multi-angle of view inspection,makes the slight adjustment to the justice and the utility between penalty goal assignment.Taking the retribution as a foundation,to realizes the crime punishment take the special prevention as the supplement penalty goal choice to be balanced,between the melt general prevention special prevention the contradiction as well as our country government by law construction have significant and the profound significance.