Research On Early Criminal Punishment In China

In 1986,Baker,a German sociologist,published the book "Risk Society",in which he came straight to the point that today's human society was living on the "volcano of civilization",therefore he put forward the Risk Society theory for the first time.Subsequently,inspired by the theory of risk society,criminal law scholars have also opened up new research perspectives on their own research fields,and the theory of risk criminal law has also emerged.In the theoretical study of risk criminal law,the early intervention of criminal law in the field of social life has become the consensus of many criminal law scholars,that is,the Early Criminal Punishment.The so-called early criminal punishment means that in order to prevent crimes and reduce risks in specific areas,bringing criminal law intervention time forward,the requirements of the pre-offender,dangerous offender and attempted offender as previously stipulated to reduce the requirements of the necessary elements for the punishment of the act-touch penalty shall be reduced,and the function of punishment shall be given full play in advance,thereby ensuring social security and stability and the safety of citizens' lives and property.Judging from the contents of the recent amendments to criminal law in China,such as the Criminal Law Amendment(8)and Criminal Law Amendment(9),a considerable number of misdemeanors have been added and some criminal law provisions have been modified,which had an obvious tendency of the early criminal punishment.The early criminal punishment in our country is mainly reflected in the following aspects: the implementation of preparatory behavior,the increase of the name of abstract dangerous crime and the criminalization of helping behavior.As for the early criminal punishment,the author thinks that it is a breakthrough in the way of legislation.In the legislative practice of early criminal punishment in our country,we should limit it within a reasonable range,prevent excessive early punishment,and more importantly,we should prevent the disguised abuse of criminal law.This paper is divided into five parts except for the introduction and conclusion.The first part is an overview of early criminal punishment.Firstly,it is the background analysis of the early criminal punishment.The introduction of the risk society theory leads to the discussion of the risk criminal law theory in the criminal law field.The scholars who advocate the risk criminal law theory also put forward the view of the early criminal punishment.Scholars believe that the early punishment can build a strict criminal law net for the social security under the paradigm of risk criminal law.Secondly,it is the concept of the early criminal punishment,to clarify the specific expression of the early criminal punishment and the early legal interest protection,and at the same time to define the connotation of the early criminal punishment,so as to provide help for judicial practice.The second part is the embodiment of early criminal punishment in China.The first is the criminalization of helping behavior,which means that the legislator directly defines a certain helping behavior as a new crime in the provisions of the criminal law,and sets up independent charges and statutory penalties for it.The second is the addition of abstract dangerous crime,which means the weakening of the causal relationship between the behavior and the risk,and does not take the occurrence of actual harm as a constituent element.As long as it is presumed that the criminal act has the real risk of causing the harmful results and cannot be overturned,it can be included in the scope of criminal law punishment.Finally,it is the implementation of preparatory behavior,which refers to the preparatory behavior that has the serious social harm,the legislator defined it as separate charges in the criminal law through the method of legal fictionalization,so as to timely prevent the occurrence of seriously harmful consequences.The third part is the controversy and analysis of China's early criminal punishment.Scholars who hold the opposite view believe that the expanding scope of criminal punishment may cause many serious consequences,such as excessive interference in the normal life of the public and infringement on the legitimate rights and interests of the public and so on.However,this opinion,which is one-sided,ignores the positive effects of early criminal punishment,such as timely punishment of potential uncertain risks.While supporters of the affirmative view believe that the early criminal punishment can timely make up for the harm caused by the lag of criminal punishment,prevent the occurrence of harmful consequence,and timely protect the legal interests that may be harmed.Obviously,this view,which ignores the fact that the over-application of early criminal punishment may violate the modesty principle of criminal law,and even lead to the over-expansion of the scope of criminal punishment,is also one-sided.The third is a compromise.Scholars who hold this view suggest that the application of early criminal punishment should be reasonably limited.While ensuring the stable social order of people's social life,the expansion trend of the range of penalty should be reasonably limited,so as to realize the unification of criminal punishment function and human rights protection function of criminal law.For the above three points of view,the author prefers to compromise.The author believes that we should insist on the support of positive general prevention theory and the theory of behavior without value,and realize the application of early criminal punishment within a reasonable limit.The fourth part is the existing insufficiency of China's early criminal punishment.First of all,the early criminal punishment has shaken the modesty principle of criminal law to a certain extent,causing the criminal line of defense to move forward constantly,and more illegal acts are included in the scope of criminal law punishment,in order to prevent the occurrence of more serious harmful consequences in the future.However,the early criminal punishment and the modesty of criminal law should be dialectically united,and the modesty principle of criminal law should not be shaken in criminal legislation because of the early criminal punishment.Secondly,in judicial practice,in recent years,legislators and social people tend to over-rely on the criminal law for social governance,which leads to an unreasonable expansion of the crime circle.The frequent promulgation of China's criminal law amendments shows that criminal law legislation is extremely active,and the blind application of early criminal punishment has led to an increase in the number of criminal cases.Because of the serious shortage of our own police resources and judicial resources,it is easy for the early criminal punishment to induce the abuse of power,which leads to a real crisis of excessive criminalization of society.Finally,there are many situations in the criminal law system of China where the elements of crime are not clear,this gives the judges greater discretionary powers.However,in order to achieve significant political achievements,local officials unilaterally pursue the protection of local interests,resulting in strong local protectionism.Therefore,there have been the undesirable consequences of excessive interference by local administrative organs in judicial decisions,which sometimes prevents the court from independently exercising its judicial power,and increased the problem of administration of courts.The fifth part is the reasonable limitation of China's early criminal punishment.Firstly,the legislator should adhere to the coordination between the principle of modesty of criminal law and the early criminal punishment,and advocate the appropriate expansion of the application of criminal law with the increasingly expanding of criminal law.Together with actively soliciting opinions from the public,and collecting the public's opinions on new charges and punishment scale through hearings,public opinion surveys and other ways.The legislator carries out the scientific legislation by weighing the public opinion,so as to realize the coordination between the early criminal punishment and the modesty of criminal law,and exploring the rational application of penalty early.In this way,the contradiction between the two can be resolved,the balance between the two can be achieved,and the unification of protecting human rights and fighting crimes can be realized in the early stage of punishment.Secondly,in order to prevent the crisis caused by the early criminal punishment,legislators should always keep the legislation forward-looking,strictly follow the characteristics of harmful behaviors,and timely list harmful behaviors that meet the standards into the scope of criminal law punishment,ensure the rigor of the criminal law network based on the effectiveness of criminal law legislation and avoid over-regulated trend.Finally,in judicial practice,we should guarantee such measures as the independent exercise of judicial power by the court and effective supervision of judicial organs,in order to strictly limit the discretion of judges,thereby safeguarding judicial authority,improving judicial credibility,speed up the de-administration process of the courts,so as to makes the early criminal punishment more effective.