Research On The System Of Misdemeanor Under The Criminal Policy Of Temper Justice With Mercy

Constructing the system of misdemeanor is based on the existing problems in theory and practice.First of all,the original reeducation-through-labor system was questioned in theory and practice due to human rights violations and other issues,and was eventually abolished.However,it is undeniable that the reeducation-through-labor has regulated a part of the social acts which are less harmful than crimes and heavier than public security penalties,and has played a certain role in such social deviance.After the abolition of the reeducation-through-labor system,there has been controversy over the direction of this part of social harmful behavior.Whether it is misdemeanor,security division or procedural justice is controversial.Secondly,there are also many concurrences between administrative law and criminal law.The dilemma of unclear boundaries between them has a long history.The theoretical ambiguity leads to the conflict between administrative power and judicial power in the application.Finally,the concept of crime in our criminal law adopts the mode of "qualitative + quantitative",which makes the behavior of the same nature get different evaluation only because of the difference of "quantity".Some cases may get unreasonable results according to the legal judgment.Establishing the system of misdemeanor,dividing the crime into misdemeanor and felony according to the seriousness of the crime,and matching it with a lighter punishment and convenient procedure,can not only clarify the above problems,but also help to protect human rights.Starting from clarifying the concept and scope of misdemeanor,drawing on the ideas and criminal policies of establishing misdemeanor abroad and combining with the specific situation of our country,this paper demonstrates the feasibility and significance of constructing misdemeanor in our country,and finally provides some suggestions for the punishment and execution of misdemeanor.This chapter first elaborates the background of constructing the system of misdemeanor in our country,then elaborates the concept of misdemeanor in our country,the connotation of the criminal policy of combining punishment with leniency and the relationship between them.The concept of misdemeanor here is not only put forward within the framework of the current criminal code,but also includes some acts regulated by the law of reeducation through labor and punishment of public security management.Then,combining the criminal policy of Combining Leniency with severity,the relationship between the criminal policy of Combining Leniency with severity and misdemeanor is clarified.The second chapter is the extraterritorial investigation of misdemeanor,mainly through the introduction of criminal policies and legislation of the United States,Britain,Germany and France,to clarify the impact of foreign criminal policies on legislation,which is reflected not only in the charges and sentencing,but also in the mitigation of penalties.In order to provide a reference for the penalty construction of misdemeanor in our country,we can see that there are similarities with our country through the legislative ideas and criminal policies of misdemeanor abroad,so we can also demonstrate the feasibility of establishing misdemeanor in our country from the side.The third chapter is the focus of this article,demonstrating the feasibility of constructing the system of misdemeanor in our country.First of all,although there is no division of minor and serious crimes in our criminal law,this idea has existed since ancient times,which provides an ideological basis for the establishment of minor crimes.More importantly,some scholars oppose the establishment of the system of misdemeanor because it does not conform to the constitutional model of qualitative and quantitative crime in our current criminal law,which will lead to the expansion of the criminal circle and the rise of the crime rate.But the author thinks that these contradictions can be solved step by step through planned legislation.Of course,the establishment of misdemeanor can not be accomplished overnight,but can not deny its feasibility.In this part,it answers these questions one by one,thus proving its feasibility in China.Moreover,the construction of misdemeanor can overcome the institutional defects of the existing sanction structure,clarify the boundaries between administrative power and judicial power,achieve the balance between administrative power and judicial power,and promote the implementation of the criminal policy of tempering justice with mercy.Chapter four mainly provides some ideas for the supplementary penalty measures of misdemeanor.For example,the establishment of Non-penalty measures for minor offences,the extensive use of fine penalties,and the improvement of community correction to make it more suitable for minor offences.We should strive to embody the characteristics of misdemeanor with mitigated punishment,and practice the requirement of "gentle" in the criminal policy of Combining Leniency with severity.The author believes that under the guidance of the criminal policy of tempering justice with mercy,the system of misdemeanor will play an important role in the process of building the rule of law in our country and contribute to the cause of rule of law in our country.Of course,because there is no concept of misdemeanor in our country,and there is no accumulation of practical experience,the author can only prove its feasibility in theory,in order to provide a premise for the construction of misdemeanor system.