Research On The Legitimacy Of Punishment: Based On The Idea Of The Governance Of Corruption With Severe Punishment

In the latest Amendment(IX)to Criminal Law,the lawmaker strengthens the punishment of corruption further that the people's court may decide to commute the sentence to life imprisonment upon expiration of the two-year period,sentence the convict to life imprisonment,and shall not offer commutation or parole,which isn't a new kind of penalty in the perspective of criminal dogma tics,but it is a new penalty that is created by the lawmaker from the views of criminal justices.What is the legitimacy of punishment that the legislature establishes life imprisonment for corruption as a crime of low risk of violence rather than the crime of high risk of violence? In my opinions,the legitimacy of criminal penalty steams from the legality of penalty and the rationality of penalty.The purpose of “principle of legality” is to protect individual rights,which was put forward by criminal classical school and now has become the essence of modern criminal law,so the degree of punishment trends to be gentle.Since the publishment of L'uomo Delinquent written by Cesare Lombroso,where he discussed systematically the necessary of classified crime correction,the criminology started to put emphasis on the otherness of offender.Franz von List proposed in Marburger Program that the aim of Criminal Policy is to punish offender instead of criminal behavior and he insisted that the object of punishment is people rather than the concept of “crime”,which is the core of his correction theory.The thought of penalty objective of List achieved the conversion of thought pattern,therefore the key of the rationality of penalty depends on the punishment is whether the punishment is based on the individual difference.Due to the particularity of subject of corruption,it's better to justify the rationality through the research of the bureaucratic compared with individual.From conventional China to modern China,there exists the natural connection between moral character of literati and officialdom and CPC's work style.China is a typical bureaucratic country,where the bureaucratic plays an indispensable role in society.The severe punishment becomes an immediate way to keep society order if corruption triggers social discontent and renders order out of control.The governor of China insists on the idea that let state order reign all the time,while the West puts human rights first.The main ideology in modern China is consisted of Marxism and Confucianism,which render interdependence between the CPC and country,and which strengthens nationalist ideal,the foundation of National Moral Monism.As a result,the corruption is regarded as not only an act in violation of criminal law but also a challenge to national moral.We couldn't quantify the degree of punishment exactly for the facts of regional recognition and national sprit,but it can be justified through state construction and culture value.It is certain that a new kind of punishment could be set that accords with the trend of society and the foundation of moral,in spite of the value conflict between punishment and ethics.To integrate society and maintain order better,a punishment measure in conformity with social structure is far more important than the punishment established by pure idea.This paper is divided into four parts.The first part focuses on the foundation and value of punishment.Firstly,the paper provides the introduction of retribution theory,deterrence theory and the preventive function of crime.Secondly,modern punishment measures influenced by above theories trend to light punishment and pay attention to the difference among the offender which decide what kind of correction measure should be taken.However,life imprisonment not only deprives the opportunity of returning to society but also violates the punishment idea,which is legality not rationality.The second part analyzes the bureaucratic social value.Conventional Chinese bureaucrats had “double identities”,the Confucian scholars of knowledge field and the government officials in the political perspective,following the same idea of “sagely within and kingly without”,which rendered them elite in moral.Webber constructed the modern bureaucratic system with instrumental rationality,which divided the personal beliefs and instrumental rationality.Modern China is perfectly compatible with traditional idea and Webber's theory,establishing the three structure of bureaucratic system: Party,belief and reason.What's more,we should notice that the moral requirements about CPC asking for membership is consistent with the professional ethic of the officials,which requires Chinese officials to keep moral priority and political correctness.In the perspective of bureaucratic law,life imprisonment fits rationality of punishment.The third part discusses the proper explanation of rationality of punishment.Human rights protection is the core of Western countries based on the social contract,which leads to light punishment.China,integrating Marxist ideology and promising positive sprit of Confucian,regards country construction and the maintenance of social order as the most important duty,which leads to govern corruption with severe punishment.What's more,populist idea,analyzed by Marx's dialectics,is the other appropriate interpretation of rationality of punishment.The last part highlights the meaning of penalty in the form of conclusion.Before we question whether the purpose of penalty is correct,we should pay attention to the effect of penalty to achieve the purpose.Although the offender may be sentenced to severe punishment,it is the need of society.Only law based on the maintenance of social order and integration within the social structure can realize its value,which is the nature of the legitimacy of criminal penalty.