The Judicial Logic Of "Criminal Penalty Constrains Crime" In The Perspective Of Consequentialist Argument

In the discretion of unconventional criminal cases,it is difficult to achieve the balance between criminal liability and actus reus through the traditional judicial discretionary way of affirming crime first and then sentencing.In the case that the applicable norms may fail according to the general rules,the judge making the case that they can giving the verdict by the opposite direction which is summarized as " Criminal penalty constrains crime " by theoretical criminal law.The current theory mainly focuses on the legality of Criminal penalty constrains crime.The reason is that " Criminal penalty constrains crime " is an unavoidable judicial choice,which may be an easier way to make a judgment or an initiator who destroys the rule of law.If only affirm or deny the Criminal penalty constrains crime,the study will shift from revealing the rational trade-offs hidden behind its phenomena to some simple statement.It also means this is a long-term study to research on the value choice and legal mind of Criminal penalty constrains crime.This paper tries to make such a theoretical hypothesis: the focus of the study on the Criminal penalty constrains crime should be to confirm its nature and to propose appropriate ideas.According to its nature,Criminal penalty constrains crime should be considered as a consequential argument which can be understood as a legal argumentation method that based on the consideration of judicial consequences,and then judge the value of various factors to seek justification for the judgment.Analyze the way of its application,exploring the space in which value judgment is applied to logical reasoning,discussing the risks and preventive measures that may be caused by the Criminal penalty constrains crime.In addition to the introduction and conclusion,the text is divided into four parts,totaling more than 55,000 words.The main contents are summarized as follows.The first part briefly summarizes the theory and practice the Criminal penalty constrains crime.First,through the case statistics and social survey analysis,objectively describe the specific application of this reverse conviction.The conclusion is: in the practice of criminal justice,the Criminal penalty constrains crime has not only been accepted by most judicial subjects,but also generally used to judge criminal cases.This idea is different from the routine of researching first then apply to practice and it's the choice of the referee based on long-term practical experience.Its application not only presents the judicial "pattern effect" but also has the characteristics of "lightening" and "heavy weight" in both directions.Secondly,based on the practice of the Criminal penalty constrains crime,the direction of theoretical research begins to change from guiding conviction to discovering the law of justice.Thirdly,in addition to working on the legality and feasibility of the Criminal penalty constrains crime,analyze its theoretical foundation according to its nature and constructs applicable ideas around specific application methods and risks prevention.The second part discusses the value support of the judicial logic of Criminal penalty constrains crime.First,clearly proposed the value hierarchy between the consequentialism and the legal interests.the judicial logic of Criminal penalty constrains crime is based on consequentialism.Only “the judicial consequences” can be an influencing factor in the Consequentialist argument,that is,the consequences can be referenced as a precedent.Since the purpose of criminal law is to protect legal interests,the value judgment of whether the behavior violates the legal interest and the degree of infringement becomes the logical premise to consider the "judicial consequences".Secondly,the consequential argumentation provides a methodological path for the analysis of the judge's value judgment.Thirdly,it is the significance of the method to practice.Since reluctantly applying the law may lead to the imbalance of criminal liability and actus reus,it is necessary to achieve the balance by using the judicial logic of the judicial logic of Criminal penalty constrains crime.Therefore,the balance between the criminal liability and actus reus is the value pursued by criminal law,at the same time,provide guidelines for its application.The third part discusses the application of the judicial logic of Criminal penalty constrains crime.First of all,the theory of imaginative joiner of offense through considering whether the behavior violates the legal interest and the degree of infringement to establish a principle of a heavier punishment.It is a theoretical precedent of the judicial logic of Criminal penalty constrains crime.Secondly,according to the process of the ruling of the referee,the three most important activities are legal interpretation,legal reasoning and final ruling.From the perspective of criminal law interpretation,the development of philosophical hermeneutics leads the legal interpretation from traditional interpretation to reader-centrism.For the judge,the reader-centrism gives the judicial activist space of the judge,so that there is a “communication mechanism” between the judge,the legislator and the public,making the judgement discretion more reasonable and acceptable.As far as the method of legal reasoning is concerned,the logic constrains crime exists as a supplement to deductive reasoning.It provides a basis for the judge to judge the value of behavior and legal norms by reflecting on the existence space of external evidence in the interpretation of syllogism.In making the final judgment,in the case that an act conforms to the composition of the two crimes,it is different from the competition of the law,and the judge may consider the criminal liability to judge the crime based on the judicial consequences.The fourth part analyzes the possible risks and preventive measures of the judicial logic of Criminal penalty constrains crime.First of all,the logic as a method of argumentation of the consequentialism,the utilitarian orientation of consequentialism may lead to the judge's choice of value from its own argumentation path,and become the judgment of "making which choice is more favorable".Secondly,the logic as a kind of legal thinking exists in the minds of judge.In the absence of restrictions,there is a risk of violating the principle of criminal law.Finally,in the aspect of risk prevention,the consistency test and the coherence argument are used to carry out the conclusions drawn from the judicial logic of Criminal penalty constrains crime to ensure the legitimacy of the conclusions.At the same time,in order to avoid the abuse of the judicial logic of criminal punishment,we should We need to limit its applicable objects,besides the criminal judgments reasoning is necessary.