Criticism On The Positive View Of Criminal Law

The social relations regulated by criminal law are comprehensive,so the breadth and depth of criminal law’s intervention in social life have become two different voices in the field of criminal law,that is,the dispute between the negative view of criminal law and the positive view of criminal law.The negative view of criminal law and the positive view of criminal law seem to be just a matter of concept and attitude in criminal policy,but in fact,the different opinions of the negative view of criminal law and the positive view of criminal law are actually two fundamentally different attitudes towards the metaphysics of criminal law,which affect the position and role of criminal law in China’s legal system and determine the direction of criminal development of a country.Whether the criminal law adheres to the negative view of criminal law or the positive view of criminal law also determines the advocate’s basic position on the issue of criminal law and the value proposition of criminal law.The degree of importance is the same as whether the philosophy adheres to materialism or idealism will determine the advocate’s basic position and fundamental value orientation.The advocacy of the positive view of criminal law has a long historical background in China.The doctrine of severe punishment and the positive view of criminal law have always been closely linked.China has always had a strong concept of severe punishment since ancient times.In Shangshu Zhou Shu Lvxing,there is a saying that "breaking the people but punishment",which means to advocate the use of criminal law to subdue the people.After the Qin and Han Dynasties,it advocated the integration of etiquette and law,which means that governing the country requires the use of both "etiquette" and "law",both of which are indispensable to the people.At that time,in order to maintain national rule and social governance,criminal law,as the only legal means,regulated all fields of society.The concepts of civil law and administrative law almost did not exist,which was the rampant of criminal law instrumentalism carrying a positive view of criminal law after the Qin and Han Dynasties.The role of penalty in national governance is often not postpositive,and in the view of rulers,penalty is the primary tool of social governance.Only the use of harsh criminal law can ensure national stability and the stability of imperial power.The advocates of the positive view of criminal law advocate that criminal law should give full play to its instrumental attribute,so as to be widely used in social governance.The specific understanding is mainly divided into the following two aspects: first,the criminal law should add more new crimes and improve the legal punishment of existing crimes,so as to better protect legal interests and achieve the purpose of social governance.Second,in practice,the judiciary should be more active in expanding the interpretation of the criminal law,so as to draw more guilty conclusions.Therefore,the praise of the positive view of criminal law not only leads to the addition of a large number of new crimes in legislation and the increase of punishment,but also makes the judicial trial tend to be "heavier and stricter".This is not only not conducive to maintaining the stability of the criminal law,but also challenges the principle of legally prescribed crime and punishment,which is inconsistent with the dignified image of the "important tool of governing the country" of the criminal law.If the legislature and judiciary continue to uphold the positive view of criminal law,it is easy to produce impulsive emotional legislation and other adverse consequences.This is contrary to China’s criminal policy of tempering justice with mercy,does not meet the trend of light punishment in the world,and undermines the requirements of the rule of law in large countries.We should correct the position of criminal law as a post means in social governance,strengthen the punishment of pre emptive law,improve the pre emptive legal system,give full play to the dispute resolution ability of administrative organs,and diversify the means of social governance.Criminal legislation should grasp the relationship between the stability and foresight of criminal law norms in order to avoid frequent changes in criminal law.Criminal legislation should grasp the discretion of the influence of "public opinion" on criminal law and adhere to the principle of modesty of criminal law.Although criminal law plays an indispensable role in solving social conflicts,criminal law is not the only means to solve social disputes,and criminal procedure is not the only way to solve social disputes.The so-called "minor criminal acts" identified by some active observers of criminal law should not be criminalized,but should continue to be coordinated and handled by administrative organs.The future choice of criminal legislation and justice should start from abandoning the positive view of criminal law and regaining the negative view of criminal law.