On "No Alternative" Principle Of The Criminal Law

After the implementation of the criminal policy of tempering justice with mercy on thepart of the central government, the research on the mainland’s prosperity of the austerity ofcriminal law in the circles of criminal law has become a hot topic. It is generallyacknowledged that the criminal policy of tempering justice with mercy contains three aspects:first, the supplementary quality, which means criminal law can only be implemented whenother informal control and civil regulation such as the sanction of habits and morality are notenough. Secondly, the incomplete quality. If the supplementary quality of criminal law isadmitted, the situation under which the law is applied is surly incomplete. Thirdly, thecriminal policy is tolerant, or puts it in another way, respect freedom. Quite a few scholars inour country advice to transplant this principle to guide the criminal legislation andimplementation. in our country, but the result of firmly adhering to this principle is that thosewho should be criminalized will be set free and those who should be heavily punished will belightly punished in legislation and those who should be punished soon will be put off..Actually, the scholars who study the criminal policy of tempering justice with mercy alsocome to this conclusion. This policy shows the modesty and restrain on the civil regulationand criminal regulation and morality in terms of safeguarding the safety of citizens and limitsthe scope for adjusting by the means of punishment, providing the citizens more freedom andrights to some degree. It has its own upsides. However, whether it is proper to apply it to oursystem of constitution of crime is a problem deserving of study. a tiny minority of scholars,after absorbing the criminal policy of tempering justice with mercy and combining thehistorical tradition and system of constitution of crime in our country, point out thatlegislation, judicature enforcement of criminal law should be based on the politics, economyand cultural tradition, the judgment of whether criminal or not should be within the allowanceof Constitution and those who have committed crime with no other choice should not beforgiven and tolerated unprincipledly----this is so-called “No alternative” principle incriminal law. This principle can not only reflect the carefulness in implementing criminal lawand Safeguard Mechanisms, but also the protection of the social order and balance betweenthese two.This essay, apart from the introduction, contains five parts. The first three chaptersdiscuss the theory and the rest two the application, Introduction: this part is a consideration of the frequent remedy of legislation in criminallaw in our country and analysis of what principle should be followed in deciding why thisbehavior is a committing of a crime while that is not; Whether The popularvictim-offender-reconciliation in Criminal Justice goes against “no alternative” principle?Why the care of human nature is so popular in criminal implementation these days? What isthe value behind it? These are all the reasons for myI writing this essay.The first chapter deals with the notion and attribute of “no alternative” principle. Thecriminal policy of tempering justice with mercy in the mainland China being in line with thejudgment of whether criminal or not is the reason why I write this essay. The multiplicity ofthe name of crimes reveals the wide scope of criminal circle and the provides evidence forthis principle. According to the theory of constitution of crime in our country, if four elementsare all presented, a crime is justified.The Mechanisms of setting free, having no concept of tempering justice with mercy, isnot so obvious as the law in mainland China which has divided the theory into three steps.The crime in our country is not only certain in characteristics but also in quantity, excludingthose behaviors which are considered as crimes in mainland China. the criminal policy oftempering justice with mercy does not admit independent targetfor adjusting. Criminal law isjust safeguarding for other law and it is one-sidely. However, the “no alternative” principleadmit that criminal law has its own independent target of adjusting----the conflict betweenthe basic human rights of the public and the individual human rights. Based on the simpleprinciple of “emergent avoiding” principle, resorting to criminal law to deprive the individualof rights in order to safeguard the basic human rights is justified. Since the “quantity” hasbeen stipulated, the nation should not deprive the individuals of the basic human rights in thename of protecting the basis rights of the public.” no alternative” principle will not resort tocriminal laws which is used only when the morality, habit and other law cannot adjust thesocial relationship and when, if the adjust with the criminal law, the legislative regulation willcollapse and do great harm to the public. Therefore its attribute is: tending to be light inconcept, to be introvert in character, to be regulated in techniques and to be relative inapplication.The second chapter tackles with the value orientation of utilitarian of the criminal policyof tempering justice with mercy. The value orientation mainly illustrates why some behaviorscan be considered as the reason of committing crimes. The nation is the stipulator, implementer and enforcer of the law which stands for the will of the whole citizens. Everylink of the criminal law should embody the utilitarian.(Utilitarian refers to the comprehensivejudgment of the freedom, order, efficiency and equality.)individuals (criminals) whosebehavior have invaded the basic human rights of all the citizens, undermined the mainstreamvalue-judging system in our country and gone against the of utilitarian of the normal socialorder, will be negatively valued by the criminal law. the criminal also has his own utilitarianchoice and they can search the choice with maximum benefits without being punished, this iscitizen’s individual utilitarian. In the whole process of implementation of the criminal law, weshould consider the conflict and balance of these two to make a sound judgment betweencriminal and non-criminal acts and high crimes and misdemeanors.The third chapter mainly discuss the status of “no alternative” principle in criminalsystem. This principle is a basis in criminal law for the reason that the target for adjusting is toadjust the relationship between the basic human rights of the whole citizens and theindividuals (criminals)and the individuals’ basic rights should be scarified if it is necessary.This is the basic requirement of the three principle on measuring the criminal law, namely,whether the “criminal” really undermine the basic human rights of all the citizens in form andsubstance.. This is also the bottom line of stipulation of the criminal policy. This principleshould be put in the same article with the purpose of criminal law, Article One in CriminalLaw.The fourth chapter is about the meaning of guidance of the “no alternative” principle tocriminal legalization. Crime is characterized by jeopardizing the society, going against the lawand being bound to be punished. This principle holds the idea that all the evaluation ofwhether the behavior is harmful to the society should be based on the political, economic andcultural background of the times, the constitution, the mainstream value concept and influenceof the international conventions, the idea that all the violation of the law in form should bedecided by the civil law, administrative law and morality, pointing out that the differentcharacteristics and representation between criminal law and these laws and regulations andthe idea that they should be punished because of their evil doings All these methods live up tothe three characteristics of judging whether a crime can hold water and in line with materialistconception of history。The fifth chapter is on the meaning guidance of the “no alternative” principle to thejudicature and enforcement of criminal law. On the basis of this principle, in judicature, the crime should not be justified when the judgment is incompatible with reason, and should beset free and extenuated after measuring the facts. In enforcement imprisonment will not beresort to if non-imprisonment is enough. This will highlight the respect for human beings andthe safeguard for criminals. But on the identification of the objective fact, for those behaviorswhich goes beyond the tolerance of the masses, criminal law will not make concession.