Discussion On The Constitutional Regulation Of Penalty Power

The power of penalty is the power of a state to punish a crime with penalty based on its ruling power.According to the different forms of penalty power in each stage of its operation,we generally think that penalty power includes the right to make punishment,demand punishment,measure punishment and execute punishment.The penalty right has the characteristics of state,mandatory,legal character,severity,expansion,etc.It is not only the protection of individual rights,but also may become the most dangerous violator of individual rights.Therefore,the penalty right must be restrained.Since the implementation of penalty is the restriction or deprivation of the criminal’s freedom,property and even life,and the issues concerning the basic rights of human beings are all constitutional issues,the penalty must be analyzed within the framework of the constitution.From the constitutional point of view,the penalty is reflected in the relationship between the state and the person who is punished by the state.Constitutional values consist of order,liberty and justice.The value of constitution determines the function of constitution to restrict state power,guarantee the democratic system and human rights.Based on the value and function of the constitution,in order to protect the rights and freedoms of the citizens,the constitution needs to limit the penal right as one of the powers of the state.Historically,in the period that had no constitution or legal documents of constitutional nature,although the penal power was limited,it was not by means of the constitution.After the constitution came into being,some countries restricted the right of punishment directly in the constitution.Although China has stipulated the basic rights in the constitution,it has not restricted the penalty right directly in the constitution.The limitation of penalty right is mainly restricted by criminal law and criminal procedure law.At present,countries in the world generally restrict the right to punishment by the principle of legality,due process and prohibition of torture.At present,our country will "the crime punishment legally" has carried on the stipulation as the criminal law basic principle.The number of executions has dwindled from earlier abuses to today’s strict restrictions.The content of basic rights of citizens in the constitution also indirectly reflects the protection of relevant rights of citizens in the process of criminal proceedings.In our country,in order to make better use of the constitutional right to regulate punishment.First of all,the constitution should be used to restrict the power of punishment.Second,the death penalty should be bound by the constitution.In this way,the operation of penalty right is restrained and the basic rights of citizens will be protected better.