The Study On The Limits Of Criminal Law

From the view of the relationship between the crime and penalty, the later, as the normal result of the former, may be limited by the boundary of the criminal law, vice versa. Therefore, the limit of criminal law must draw on two stands:first, the negative value of the undesirable act, for example the harm to society; second, the contour of the penalty, namely the undesirable act need to be punished with the penalty, is based on the limits of criminal law. The negative value of the act, form the ontological review, is its substantial assessing. However, as the principles which draw the limits of criminal law, are reasons justifying the criminal prohibition, if the Paternalism could justify the prohibition, the hotheaded suicide would be criminalized at first, because it is more disadvantage to actors self than others. But most countries that have criminalized the suicide have a trend to decriminalize it, and the assisting suicide that criminalized is based on the two reasons:first, it is difficult to confirm the suicide is due to the voluntary of the suicide man or woman; second, the actors who assist the others to suicide violate the legal taboo. Furthermore, Paternalism deprives the actors of today’s freedom because it maximizes their own tomorrow’s interest, but it is may not be the real interest of the party due to the interest to be subjective. In addition to that, that the criminal law deprives of the freedom of actors for their own interest can bring the stigma to them, and the foundation to the paternalism must be found in the maxims of God. If the legal moralism can justify the prohibition, then, the problems arise like the paternalism. The reasons may be such:at first, the meaning and extension of legal moralism is not definite; secondly, it may make some people’s belief to deprive of other’s and lets the criminal law to lack the spirit of "utima ratio". In other words, if the legal moralism and the paternalism can justify the criminal prohibition, then, the limits of criminal law is not ascertained, but also it may deviate from the trend and valuation of current legislation of the world. Therefore, there leave two standards to justify the prohibitions:one is the concept of rechtsgut; other is the harm principle on the ontology. The former is theory of criminalizing of Civil law; the latter is the theory of criminalizing of Common law. For the principle of protecting of rechtsgut and the harm principle, they have two problems:their meaning and extension are very faint, and the tort law protects the rechtsgut as the criminal law as ever. So the principles can not perform the task of drawing the boundary of criminal law. The two theories to draw the limits of criminal law like the dog without the teeth. If you want give the dogs teeth, you should need some moral theory to help you to select the undesirable act that can be criminalized. On one hand, the two principles pose the essence or substance of a crime, on the other hand, it is insufficient to draw the limits of criminal law, which need the principle of "last resort" to complement or restrict. Therefore, there need some moral theories to assist the legislators to select the undesirable act to punish with criminal law or sanctioned with civil law. Among the moral theories, which are deontology, utilitarianism and relative deontology, the utilitarianism is superiority over others except in the analysis of the legal taboo. If legal moralism and paternalism can justify the prohibition, the criminal law limits not only cannot be drawn, but also may be deviation from the trend of the law development and the current value. Therefore, the standards that draw the limits of criminal law leave the concept of rechtsgut and harm principle. On one hand, they imply the substance of the crime on the ontology, on the other hand, they cannot suffice to draw the limits between the criminal law and civil law, or the tort law, and they need the "utima ratio", namely the last resort principle, to make up. However, as the last resort principle can be counted further, in other words, on the harm principle and the protecting rechtsgut principle, the moral theory to select the act that would be criminalized may help the harm principle and the protecting rechtsgut principle to accomplish the task. On comparing the utilitarianism with the deontology and relative deontology (mostly the dam theory), it is obvious that utilitarianism has more advantages than the deontology. So, the moral theory, which implies the last resort principle, is as such principle:the theory that is based on the harm principle and protecting rechtsgut principle is the utilitarianism except the legal taboo, which can not be analyzed with the utilitarianism. In other words, whether one undesirable act can be criminalized or not depends on two facts:one is whether it is accord with the harm principle or the principle of protecting rechtsgut or not; another is whether it is conformed to the analysis of utilitarianism. Of course, the conclusion must be based on the gap between the norms of criminal law and tort law. It is thought, according to the legal scholarship, that the purpose of the criminal law is to achieve the retributive justice; the tort law is to achieve the corrective justice. Therefore, there many distinctions, such as prosecutors, prerequisites to a remedy, severity of sanctions, punishment proportional to the culpability of the actor, broad spectrum of fault or culpability etc, among them from the normal perspective. Based on the distinctions and utilitarianism, the standards to draw the line between the criminal law in broad sense (including the administrative law) and civil law are following as:first, intent or mens rea of actors to cause harm. It means that the victim was intentionally harmed, which not only increase the probability of actually causing harm, and implies that the benefits the wrongdoer receives from committing an offence are often large, but also decreases the probability of detection and decreases the probability of detection; secondly, Imperfect detection by private parties, Imperfect incentives and judgment proof or insolvency problem, which inflect the deterrence of liability. If civil law is insufficient to deter the undesirable act, this is a justification to interference the freedom of citizens. In the same way, the Informational Advantage and cost of enforcement are important for criminal law. However, the distinctions between the criminal law and tort law have one premise:both are to protect the rechtsgut, but main dimensions are different in order to protect rechtsgut,one is to punish the actor, the other is to compensate the victims. Punitive civil sanctions are in the middleground between criminal law in broad sense and civil law. The characteristic of punitive civil sanctions have different viewpoints, such as formal procedural approach, compensatory approach, deterrence approach, the punitive approach, which is called retributive approach in order to prevent to misunderstand with the punitive civil sanction. However, from the purpose of punitive civil sanction, the aggravated damages are a substitutive redress measure to human dignity, and the deterrence damages are to internalize the cost of act. But in the course of applying the punitive civil sanction, if it has not both the purposes for more-than-compensatory money sanctions, the claim of the nature of which is punitive or retributive is persuasive. Therefore, once the purpose of the more-than-compensatory money sanctions is characterized as the punition or retribution, the general civil procedure can not be applied to the sanction. Here, it is necessary to provide the some procedure safeguards for the defendant. They include the standards of evidence, privilege against self-incrimination, and the duplicative punishment problem. Legislative adoption of punitive civil sanctions grew rapidly during the middle of the century and has continued to expand in recent years, the reasons are as follow:one is the actual demand, namely, the system is dominate to control the retributive damages against the wealthy or powerful men or women, the other is the changing philosophy of sanctioning, namely, utilitarian theory substitute with Kantian ideas of metaphysical imperatives. The most important reason is the growth of the administrative state. The rules of punitive civil sanctions due to its distinctive meanings should be independent status from others. This causes administrative law independently. Therefore, it is necessary to draw the line between the criminal law and administrative law, put differently; the criminal law should remove the content of administrative law and become the one in narrow sense. As the boundary between the administrative and criminal law can not be definite on the ontology, the work is still done on the utilitarianism as ever. Considering the cost of errors, the administrative law can not contain the freedom penalty. So, the more-than-compensatory money sanctions, namely the punitive civil sanction, which constitutes measures of punishment and means of regulation, stands for the liability to defy the administrative law in fact. Therefore, measures of punishment, stigma, possibility of cooperation of administrating law and features of harm, etc, are the criteria to divide criminal law from the administrative law after the removing the freedom penalty. But as the theory of dividing criminal law comes from the common sense, it is needed to test the positive law reciprocally and realizes the unification of the statue with the theory. From the perspective of rules, vice-back pay should be criminalized, the adultery, incest and diffusing the absence products among the adults, gambling and providing some conditions to woman prostitution should be decriminalized. From the perspective of principle, preventive tortures can not be justified and should be condemned with the law. Upon thus, it is obvious that when the criminal law is protecting the rechtsgut there are many rules to limit it and is not allowed to the wish to be substituted with the law. However, the boundary of criminal law is decided in justice in the end, and the legislation is the presupposition to accomplish the task, in other words, the latter plays an important role in drawing the boundary,but is not a determinant.