The Study On The Motivation System Of The Criminal Law

Needs are the source of persons' acts,and incentives are the direct driving forces of human acts,desires are the subjective reflection of the needs,are the embodiment of needs.The contradiction between the infinity of desire and the finiteness of resources has spawned the systems,and systems are the systematization of rules.Due to the regulation of the content of the human desires and the ways to satisfy them,Law is produced as the form of system.Criminal law is not only the safeguard law of other laws,but also the safeguard law of other social system.The function of the system is a system of performance,efficiency.And punishment(restraint)and motivations are two means by which the functions of system play the roles,also are methods and strategies of management and regulation of persons' acts.Punishment imposes pain to anyone who violates the rules in order to inhibit acts in violation of rules,and discipline is a kind of the punishment with a definite purpose.But motivation is to motivate the positivity of the perpetrators by satisfying the desire of the perpetrators and stimulating the motivations of the act.Based on retribution or utility,on the whole,tending to be utilitarian,the objective of punishment is to inhibit the evil of human nature,but the objective of the motivation is to guide the profitability(profit and avoid harm)in human nature to good,and not to make the profitability cause harm and evil.A good motivation system can effectively prevent bad persons from doing evil,and even can induce,guide and persuade bad persons to shun evil and do agood deed.Criminal law makes use of two means of the punishment and motivation to prevent and treat crime,so that criminal law system can be divided into of criminal law punishment and criminal law motivation system,criminal law punishment system is the mainstream of criminal law,and criminal law is a punitive law.The fundamental objective of criminal law is "good"-to protect the legal interests,the means of punishment of criminal law is "evil",the means of motivation is "good".The objectives of punishment and encouragement are both "good",the former is " dispel evil with evil ",latter is " bring good to eliminate evil ",the former is "punish evil",the latter is " punish evil and promote good ".In short,the objective of the criminal law is "good",the means to achieve the objective has "evil" and "good",the means of punishment is in a dominant status,the means of motivation is in a subordinate status.Criminal law shall "combine punishment with leniency ","temper justice with mercy ",that is,pay attention to "punish evil",do not ignore "promote good",criminal law should have "Bodhisattva heart",if necessary,exploit "drastic means." Criminal law motivation(means)is the use of commutation and exemption of crime and punishment to stimulate,induce,promote the offenders(criminal suspects,defendants,criminals)to perform a good act stipulated by criminal law,it is one of the ways to use the national penalty power,criminal law motivation system for the offenders set up "Golden Bridge" through which they withdraw from complete crime or uncomplete crime.The "good acts" committed by the offenders is not the act of fulfilling their legal obligations,but the act of gaining interests.Although the criminal law motivation has been there as of the date of the criminal law,there have been both punitive criminal rules and also motivational criminal law norms,but so far,no scholars from the perspective of motivation systematically have studied the criminal law system,criminal rules,or have found the theoretical foundation for commutation and exemption of crime and punishment to in the criminal law,this study is contributive to fill this gap.In practice,we overemphasized the punishment function of the criminal law penalty system so that objectively the motivation function of the criminal law motivation system did not fully play the role.When there is no foundation,no need,no benefit,invalid for punishment,we can try to take advantage of motivation.This paper is divided into seven parts: the introduction,the basic definition,the theoretical foundation,the hypothesis of human nature,the function and value,carding and analysis,deficiency and perfection of the motivation system of criminal law.So,on the basis of a comparative study between punishment system and motivation system of thecriminal law,the key lies in the analysis and interpretation of principles and the logic contained in the criminal law motivation system of and in practice.The principles and methods of ethics,economics,management,sociology and other subjects permeate the paper.The first chapter introduces the basic definition about motivation system of criminal law.In modern society,the punishment is the legal violence monopolized by the state,which is the manifestation of the state punishment power.In general,the punishment is the inevitable result of the crime,and the criminal law is the legal rules that state exploit punishment as the main means to deal with crime,and reflects adversarial relationship between the state and individual.The nature of crime is culpable of punishment,and the nature of punishment is penalty.Criminal law is a disciplinary law in nature.From the perspective of normative function of criminal law,criminal law can be divided into disciplinary criminal rules and motivational criminal rules.Unlike the former,the latter is a non-mandatory rule and an authoritative rule;the legal consequences are affirmation and praise.Criminal motivation system is the systematization of motivational criminal rule,and its direct objective is to motivate and guide the offenders to commit good acts stipulated by law,the fundamental objective is to prevent and treat crime.Motivation has a multidisciplinary meaning: in psychology the motivation is a psychological process to motivate,promote,guide,maintain and strengthen the persons' needs and incentives;in management motivation is to encourage persons' enthusiasm;The main problem of motivation theory in economics is how to internalize the externalities of individual behavior;“Motivation” in the science of law is to motivate the occurrence of individual legal acts,so that the individual is motivated to act required and expected by law.Motivation is to strengthen the act of people,but motivation does not include penalty.Criminal motivation system is a kind of state motivation system,and embodies the will of the state,the offenders are in a passive position,and the criminal law motivation system is not a kind of trade system based on contract between state and offenders.In psychology motivation are associated with need,incentive,behavior,incentive is object of motivation.Motivation is the subordinate concept of award and reward,whose extension is broader than award and reward.The broader sense of education is a social activity for the direct objective to affect people's physical and mental development,the psychological sense of the motivation is a social activity for direct objective to influence people's minds and then guide the acts.The nature of motivation is to promote others to work for our interests,that is,to improve positivity,initiative and creativity of the act of others for our interests.Criminal law motivation is a process that state(criminal law)gives no conviction,suspension of execution of punishment,lighter or mitigated punishment,alteration of the ways of execution of remaining punishment and other interests of commutation and exemption of crime and punishment to stimulate,induce,promote the offenders(suspects,defendants,criminals)to voluntarily and effectively reduce social harm(harmfulness)of crimes or their personal danger(dangerousness)of acts and to internalize externality of his crime.Voluntariness and effectiveness are the main characteristics of the criminal law motivation.Commutation and exemption of crime or punishment are the rewards of the criminal law to the criminal's good behavior.Commutation and exemptionof crime is which one person not to be investigated criminal responsibility or not to be criminalized.Commutation and exemptionof penalty coverswhich to reduce or exempt the penalty of the criminal,to execute or declare penalty temporary,toelease criminals subject to conditions,to eliminate the sequelae of penalty and so on.The good behaviors of criminal law includes but is not limited to discontinuance of crime,disclosure of information about oneself or others,repentance,which are conducive to the country and society.The mechanism of criminal law motivation system is to use the offenders' instinct for “profit and avoid harm”,to take advantage of commutation and exemption of crime and punishment as a lure to stimulate,induce,promote the offenders to perform good acts stipulated by criminal law.The Criminal law is a typically disciplinary law,and not a motivational law.The foundation of commutation and exemption of crime and punishment in the criminal law motivation has similarity with the foundation of sentencing,and they are both concerned about social harmfulness of crimes and personal dangerousness of offenders.The second chapter covers the theoretical foundation in motivation system.of criminal law..The philosophical foundation of the criminal law motivation is utilitarianism,and there are fundamental differences between utilitarianism and deontology,the greatest harm to utilitarianism is opportunism.The purpose of utilitarianism is seeking for the mine benefit maximization.It is consistent with the motivation system of criminal law in emphasizing the independence and effectiveness.Psychological foundation in criminal law is to draw on advantages and avoid disadvantages,Feuerbach's psychological coercion theory is a typical representative.One person can be motivation when he or she chase profits,meanwhile he or she can reduce or abandon criminal actsfor fear ofvictimization.The motivational foundations in management of criminal law motivation are the content-based motivation theory,the process-based motivation theory and the modification motivation theory,and the motivation theory of management can be used to motivate offenders.The third chapterfocuses onthe humanity hypothesis in motivation system.of criminal law.Criminal law focuses on the offenders and criminal acts,the core task of criminal law is to study the offenders(criminal suspects,criminal defendants,criminals),and the assumption of the nature of the offender in criminal law motivation is the logical starting point of the study.The premise of constructing the motivation system of criminal law is to understand human nature and respect human nature.Otherwise,the result of the motivation system of criminal law will deviate from its purpose.The core assumption of philosophy is the problem of good or evil human nature.There are four kinds of theories of human nature in western management: "economic man" assumption,"social man" assumption,"self-realized man" assumption,"complex man" assumption.The most important human nature assumption in economics is that of "rational economic man".In science of criminal law and criminology,criminal classical school and criminal positivist school have different school dispute about the question of whether freedom of human beings is free,that is,indeterminism or behavior determinism.Criminal law is the restrictive stipulations for the content of basic desire,the degree and way of satisfactions.Crimes are the acts that offenders do not comply with the stipulations of the criminal law to control their own desires,but to pursue desires prohibited by the criminal law or to use the way prohibited by criminal law to satisfy the desires.Most members of society cannot tolerate desires which are prohibited by the criminal law or the ways which are prohibited by criminal law.Criminal punishments are the penalization of criminal acts,in the content of depriving and limiting their interests to satisfy the desires.Criminal law motivation is that the state stimulate,induce,promote the offenders(criminal suspects,defendants,criminals)to perform good acts stipulated by satisfy the offenders' desire of commutation and exemption of crime and punishment.Offenders are the desiring men with bounded rational,and the roles of criminal law punishment and motivation are limited.The fourth chapter focuses onthe function and value of criminal law motivation system.Function is the usefulness of things.The value of thing is that itmeets a special active need to human beings.Function of thing isobjective attributes whichcan meet the needs of human beings.The basic content of function is that meeting some other need.The realization of the function is a result which meeting some other need.Function is closely related to value.The function of the criminal law system isthat the criminal law system can have a positive effect,that is,the objective attribute that it also satisfies a kind of human need.The motivation function of criminal law system is the objective attribute of criminal law to meet the needs of the state to motivate offenders.Generally speaking,the criminal law has two functions: protecting legal interests and punishing crimes and could expand the functions of criminal law according to the actual needs.The functions of the criminal law and the functions of the criminal law system are the relationship between the whole function and the partial function.The need of the state to motivate the offenders is the premise and the foundation of the realization of the function of the criminal law motivation system.The most important and core function of criminal law motivation system is the motivation function,and it also has the function of guidance,evaluation,prediction,education,coercion.Compared with the punishment function,the motivation function of the criminal law system has the following advantages:Firstly,it can better reflect the humanism of the criminal law;Secondly,it can better realize the value rationality;Thirdly,it can better compensate for the lack of punitive function;Fourthly,it can give consideration to protecting human rights and combating crime;Finally,it can improve the efficiency of the use of punishments.The fifth chapter is for the purpose of to motivation system of criminal law carrying on the system combing with the analysis.The motivation of criminal law is an important foundation for commutation or exemption of crime and penalty.All legal rules that have positive motivations,inducements,and promotions of incentives and acts can be classified into the category of motivational legal rules.The criminal law in China or elsewhere,in modern or ancient times all contains motivational criminal law rules.The motivational function of criminal law can be implemented on the operation of criminal law motivational rules.The systematic manifestation of the motivational rules in the general provisions of criminal law is the criminal law motivational system.According to the regulations of the general provisions of Criminal Code,criminal law motivation includes discontinuation of a crime,voluntary surrender,confession,rendering meritorious service,suspension of sentence,commutation of Punishment,parole and so on.Besides,abolition of criminal record and rehabilitation also are criminal law motivation systems,while the pardon system is not a criminal law motivation system.In the process of offenders' conviction of crimes,criminal investigation,examination and prosecution,criminal trial,and execution of criminal sentences can impose criminal law motivation on offenders so that they can motivate and induce offenders commit good acts stipulated by criminal law.In China's specific provisions of current criminal law,regulations of a crime of non-state functionary bribery,a crime of tax evasion,a crime of buying abducted and trafficked a woman or a child,a crime of illegally cultivating mother plants of narcotic drugs,a crime of embezzlement,a crime of acceptance of bribes.a crime of bribing,a crime of introducing a bribe,and probate during wartime for a soldier all contain motivational criminal rules.Unlike the unitary crime model,tax evasion is constructed according to the dual crime model.The good actsstipulated by criminal law of the offenders isalso the manifestation of its "atonement",and actually played a role in atoning for a crime by meritorious service.Criminal law motivation system and criminal law motivations rules constitute the criminal law motivation institution,which plays a positive role in the prevention and treatment of crime.The sixth chapter discusses the deficiency and improvement of the motivation systemin criminal law.Although our current motivation system in criminal law is generally scientific,reasonable and basically could meet the requirement of motivating the crimes,meanwhile it has some limitations and shortages which have influence on the function of the system,sometimes the running results even deviate from its original purpose.Motivation system in criminal law itself is not all-powerful because of limited function,further more it is highly dependent on external conditions,as it is apt to be restricted by outer environment and personal factor.Specially,the limitation of the motivation of criminal law shows on: the loss of the crimes' subject status causes the difficulty of fulfilling the contract between crimes and country,thus it's necessary to change the subjectivity to inter-subjectivity;the crimes are might to reject repent without the motivation,or they ask for a utilitarian reforms.In our criminal law,there're either some problems on motivation system in criminal law: because of the unreasonable design for commutation,parole,and trial procedure,it's very difficult to accurately disclose the information changes of the crimes' physical risk.Probation limited commutation and life imprisonment system leads to an extreme reduction even vanish of the motivation of the commutation and parole,that cause criminals can't “reform in expectation”.Our Criminal law doesn't establish annihilation of record and rehabilitation system;some restorative judicial measures are lack of legitimacy;the Criminal law motivation standard on “binary constitution of crime” is very rare,etc.It's necessary to make adding,deletion,and adjustment on the motivation system in criminal law,meanwhile,optimize the running environment of the system,to ensure its core function—motive function get a completely development.First of all,establishing motivation of criminal law basically principle: legality principle,justice principle,utilitarian principle,timeliness principle,due procedure principle;Secondly,Extending the territory of motivation of criminal law,adding specific motivation system of criminal law,taking a diversified measures according to different requirements of criminals;Thirdly,exterminating opportunistic behaviors in motivation of criminal law and depriving the interestsobtained from opportunistic behaviors;Fourthly,Establishing an equal consultation system between country and criminals,and regards their relationship as a reward and contraction.Fifthly,the penalty execute system against motivating of criminal law should not be implemented or avoid to use frequently.Finally,Enhancing the publicity of the motivation system in criminal law,creating a public opinion environment of “do well and have well”.The optimal effect of the motivation system in criminal law running is to change one criminal to a law-abiding citizen who could return to society without motivation of criminao law.