On Equal Harm Retribution In Contemporary Criminal Law

The opposition between retribution theory and utilitarianism is the two basic standpoints in the field of criminal law.Equal harm retribution is a branch of retribution in criminal law.In fact,"revenge" in traditional cognition has nothing to do with today's "equal harm".In ancient society,the so-called "eye for eye" equal harm is actually a class and unequal "harm".This is not equal harm,but homomorphic revenge.The reason why there is the impression of equal harm retribution and homomorphic revenge is that they misunderstand the historical and philosophical roots.In criminal law,the meaning of equal harm retribution is to impose the same or similar form and damage on the offender based on the form of crime and the damage caused.This is a kind of penalty theory based on justice,although it has its own historical limitations.There are still some deviations in the understanding of the retribution theory of contemporary criminal law scholars,at least they have not fully developed the positive effect of the retribution theory,and they have not fully paid attention to the positive significance of containing crime and punishing crime contained in it.Equal harm retribution has the characteristics of region,deviation and class.The difference of regional culture inevitably leads to the difference of criminal law culture.Deviation implies a substantial inequality.Class nature means that the implementation of the concept of retribution will be affected by the different identity of the criminal and the victim.One of the functions of the concept of equal harm and retribution is to maintain social stability and realize the long-term stability of the country by curbing the intensification of class contradictions.In the general principles of criminal law in China,articles 3,4 and 5 of criminal law directly or indirectly reflect the concept of equal harm retribution.In the specific provisions of the criminal law and the amendment to the criminal law,there are also many reflections of equal harm retribution.In the judicial practice,according to the social harmfulness to give punishment reward,this is a form of expression of equal harm retribution.Therefore,in the judicial practice of the crime of infringing property,the crime of hindering social management order,the crime of endangering public security,the crime of infringing personal rights and other crimes,the concept of retribution plays a role.In almost all criminal cases,the equal harm retribution will become the consideration factor of the size of the judgment penalty of the judicial organ,but sometimes it is explicit,sometimes it is recessive,sometimes it is directly reflected as the corresponding form and degree,sometimes it is only indirect reflection.In the general principles of criminal law in China,articles 3,4 and 5 of criminal law directly or indirectly reflect the concept of equal harm retribution.In the specific provisions of the criminal law and the amendment to the criminal law,there are also many reflections of equal harm retribution.In the judicial practice,according to the social harmfulness to give punishment reward,this is a form of expression of equal harm retribution.Therefore,in the judicial practice of the crime of infringing property,the crime of hindering social management order,the crime of endangering public security,the crime of infringing personal rights and other crimes,the concept of retribution plays a role.In almost all criminal cases,the equal harm retribution will become the consideration factor of the size of the judgment penalty of the judicial organ,but sometimes it is explicit,sometimes it is recessive,sometimes it is directly reflected as the corresponding form and degree,sometimes it is only indirect reflection.