The Rational Basis For The Allocation Of Fine

Allocation of fine is a research topic of great practical significance in the theory of punishment,the rational basis of allocation of fine is discussed according to the association between retribution and prevention,which seems to have nothing new in abstract level.But expanding unlimited fine and obligated fine in the modification of criminal law in China,seems to ignore the principle of legality and deviate from the orientation of a balanced tortured.The problem such as the contradiction between widely application and low rate of execution,seems to push the trial court to extremely passive position.The merger between retribution and prevention does not turn into a powerful force of achieving penal justice.The big crack between theory and practice shows that returning to value position to torture expression of retribution and prevention system,seeking solutions in view of the difficulties and problems in the legislation and the judicial,is a stereotype often new topic.The full text is about 35,000 words,which consists of six parts:The first part,explain related legislation and legal foundation,the difficulties and problems.Firstly,sets forth the status of fine in different countries and regions,and analyzes its rationality as a supplementary punishments in the penalty system of the criminal law in China.Secondly combing the contents of the configuration of the fine changes involved in the criminal law to include the legislative characteristics that the scope of application is expanding,the obligated and unlimited fine takes up the primary position.Then,puts forward the difficulties and dilemma of the application of fine,which includes a high penalty rate and low rate of execution,fine and special confiscation of mixed as a whole,paying a fine before trial aggravating unfairness,and the contradiction between chase of execution and return society.The second part,systematically interprets the retribution foundation of fine.Starting from the moral and legal basis of equivalent retribution,emphasizing the configuration fine shall abide by the principle of "behavior should be with responsibility ",indicating that the degree of act's social hazard and subjective sin should be the important basis in measurement of penalty.The specific idea is: to decide the penalty limit with retribution,and to suppress the orientation of the prevention of heavy punishment;The feeling of retribution should not be violated because of the reduction of prevention and the use of penalty.Retribution can directly control the penalty limit and the indirect blockade of the lower limit.The third part,interpreting prevention basis of allocation of the fine.Prevention is the utilitarian punishment's connotation,which has great different in judicial pragmati sm prevention.Independently sentencing fine can deprive and punish offenders at same time,and realize retribution and prevention.Vicarious function of choosing a fine and sy nthesis function of combined fine make prevention come true.The fourth part,put forward the the general rules for judicial configuration of fines according to the combination of retribution and prevention.In the sentencing phase,we should consider criminal responsibility ability,and make a discretion according to the combination of retribution and prevention theory.In the execution phase,the effect of the special prevention needs is variable.Therefore,we should consider the following ability of the victim,and take into consideration the relief sentenced to a fine in order to eliminate the negative impact of excess punishment.The fifth part,put forward the the special rules for judicial configuration of fines according to the combination of retribution and prevention.First of all,we should be alert to probation and fines or perversion,avoid the fine punishment nature alienation become "with money to redeem punishment" tool.Secondly,the deduction shall be made from the fine to make up the criminal compensation for damage,in order to eliminate the reality of civil compensation in advance,with fines as the embodiment of the national responsibility euphemistically to realize civil compensation.The last,whether can independently be sentenced to a fine or not,should point for underage criminal capacity for civil conduct.If someone do not have full capacity for civil conduct,he should not easy to underage criminal penalties as the way to realize its full responsibility.The sixth part,conclusion.According to the penalties applicable in the first part of the article,a brief response and solutions are put forward.Aimed at the difficulty puts forward concrete opinions to the legislation of the fine configuration.And reiterated that retribution and prevention should be the value basis at any stage or any punishment configuration.