A Study On The Dynamic Character Of Purpose Of Penalty

The purpose of penalty stands as the core of the penalty system.A scientific penalty purposes to guide penalties from brutality to humanity,from injustice to justice;it is the basis of the realization of crime prevention,and the guarantee to the criminal law system's being more scientific and reasonable.What is the scientific purpose of penalty;How to realize the purpose of penalty—these have been topics explored through continuous efforts of scholars within the academic circle of criminal law.However,since most of the research was confined to the field of criminal law,and the loss of research directions under relatively singular research methods and static perspectives,no significant progress has been made so far concerning the topics.We should include them into philosophical,historical and social perspectives to study.Only with broader views and dynamic perspectives can we better establish the scientific purpose of penalty as well as promote the realization thereof.The dynamic character of purpose of penalty is a theoretical proposition proposed in such context.Through dynamic perspectives,the proposition integrated the change and development of purpose of penalty and its basis,the establishment and realization of purpose of penalty and other questions together for a systematic study,so that we could obtain a more comprehensive understanding of the purpose of penalty,establish a more scientific purpose of penalty and better realize the purpose of penalty.This paper is divided into six parts: afer the introduction,specific in accordance with the basic explanation of the dynamic character of purpose of penalty,the relation between the development and dynamic character of purpose of penalty,theoretical basis of the dynamic character of purpose of penalty,the dynamic character of purpose of penalty and the establishment of purpose of penalty in our country,the dynamic character of purpose of penalty and the realization of purpose of penalty in our country of five chapters to the dynamic character of purpose of penalty of.The first chapter introduces the basic explanation of the dynamic character of purpose of penalty.In this chapter,the concept and content of purpose of penalty are deduced from the theory of purpose and the theory of purpose of law,and deduced the dynamic character of purpose of penalty from the development of the theories above.Change and development are the outward expressions of the dynamic character of purpose of penalty,while the establishment of a scientific purpose of penalty and the realization of the purpose of penalty being its essential connotation.First,starting from the theory of purpose,exploring the contents and meaning of purposes from the viewpoint of philosophy,grasping the development course of the theory of purpose,studying the theory of purpose from ancient Greece,Medieval ages,period of ideological enlightenment till the theory of purpose of Marxism,it could be noticed that the Philosophical theory of purpose was an evolving proposition,which had been focusing on the argumentation of two major themes—whose purpose it is eventually;who is the purpose for ultimately.The theory was brought down from “divinity” to “humanity” by the purpose theory of Marxist philosophy,which was a great progress of the self-knowledge of human beings.The important value of its change and development lies in guiding people to establish scientific purposes in various aspects,under which they could then achieve their own goals.Second,on such basis,further explore the purpose of law.Under same historical context,by studying the theory of purpose of law,we found that the theory of purpose of law was also an evolving proposition,which had been circled around the two major themes of “Justice” and “Order”.“Justice” is the inner nature pursued by law while “Order” being the external form pursed by law.The “Will” embodied by “Justice” and “Order” were turned from “divinity” to “humanity” by the theory of purpose of law of Marxism--the purpose of law was given by the people;people were the purpose of law.The important value of its change and development lies in guiding people to establish scientific purposes of law,under which we could finally achieve the purposes of law.As a subordinate concept of the theory of purpose and the theory of purpose of law,purpose of penalty—no matter analyzed through the development of the theory of purpose or the development of the theory of purpose of law,or analyzed under the “Three Major Laws”,“Theory of Knowledge”,“ Theory of Practice” or other theories of Marxism dialectical materialism,or directly examined from the perspective of development of purpose of penalty—it possesses the character of changing regularly and consciously along with the change of the objective world,and the character of continuous development after repeated tests of practice,which are concluded as the dynamic character.Its direct purpose is the establishment of a scientific purpose of penalty;its ultimate goal is the realization of the purpose of penalty—these are the two crucial parts of the self-actualization of the dynamic character of purpose of penalty,and the most essential and the core content thereof as well.But these two parts cannot be completed at one time;instead,they shall go through an iterative,developing,innovating and upward spiraling process,which in turn creates the dynamic character of purpose of penalty.Its basis roots in the contradiction between the nation's demand for “Justice and Order” and the purpose of penalty in reality,as well as the inherent contradictions of purpose of penalty.The second chapter covers the relation between the development and dynamic character of purpose of penalty.The development of retributive punishment,preventive punishment and the combination doctrine has fully demonstrated the dynamic character of purpose of penalty,which also expressed our predecessors' strong desire and pursuit for the establishment of a scientific purpose of penalty and its realization.As an important content of purpose of penalty,retributive punishment has gone through a development process of historical continuation,and of survival of civilization as well.The blood revenge by family upon family in primitive society is the fetal movement of retributive punishment,the normative revenge in ancient society the gestation,the divine retribution in Middle Ages the birth period,and the moral retribution theory and the retribution theory of law in the Age of Enlightenment the booming period;now,retributive punishment has generated new vitality.From the development of retributive punishment,we could perceive our evolutionary history from anthropoid to modern human,during which we evolved from barbarism to civilization,from brutality to humanity,and from injustice toward justice—it is a process of changes and development,a process of the full demonstration of the dynamic character of purpose of penalty as well.As the other side of purpose of penalty,preventive punishment has undergone a development process of more openness compared with retributive punishment.Under the most basic human needs,the negative general prevention and the negative special prevention were formed,which constituted the initial fundamental contradiction of preventive punishment.In the process of mutual confrontation and compromise,after unceasing self-denial and the negation of negation,the two sides of the contradiction generated new contents respectively,and further disintegrated into four sub-purposes: negative general prevention,positive general prevention,negative special prevention and positive special prevention.Preventive punishment is like a seed of hostility sown in the primitive society,which sprouted and grew wildly in the ancient society,tamed for growth in the Age of Enlightenment and bore fruit in modern times,now developing towards diversification.This process of continuous change and development is undoubtedly a process that has shaped the dynamic character of purpose of penalty.The formation and development of combination doctrine is the result of unity of the two opposites of retributive punishment and preventive punishment—the two are destined to constitute two sides of the same coin of purpose of penalty.Though for a long time,in terms of theories,partial deep going study appeared in both retributive punishment and preventive punishment,in judicial practice,the development of the two has always been interconnected.Such connection,driven by demand and guided by theory,has developed into a comprehensive pattern that was more reasonable—the combination doctrine,which further shaped the dynamic character of purpose of penalty.The development of purpose of penalty helps us achieve a comprehensive understanding of itself and tis connotation,directly perceive the immediate purpose of the dynamic character of purpose of penalty as the establishment of a scientific purpose of penalty and the ultimate purpose as the realization of the purpose of penalty—a process of upward spiraling circle,and helps lay the foundation for our better grasping of the regularity of purpose of penalty.The third chapter focuses on the theoretical basis of the dynamic character of purpose of penalty.In this chapter,the author expounded the theoretical basis of the dynamic character of purpose of penalty from the perspectives of philosophy,society and criminal law,which is also the essential point of the establishment and realization of the modern purpose of penalty.The important philosophical basis of the dynamic character of purpose of penalty is the System Theory.System Theory is a discipline studying the general models,structures and laws of systems;it is the systematization of Marxist philosophy,and a scientific view of the world and methodology.Purpose of penalty contains three basic elements,namely retribution,common prevention and special prevention,which interrelate with each other into an organic and complex system.To clarify the relationships between the elements,discover the laws therein,and to study the dynamic development of purpose of penalty,it is necessary to apply the System Theory.From the perspective of society,penalty is a part of the superstructure,whose generation,change and development are intertwined with politics,economy and culture.Politics,economy and culture,systemized into certain social order,provided a concentrated expression of the will and demands of the ruling class in pursuit of “Justice and Order”.Therefore,the nature of the dynamic character of purpose of penalty is a response to the changes and development of social order,which is also its fundamental practical reason.This paper mainly studied the historical changes in Europe,while taking China's steady-state history into consideration for contrastive study.By conducting in-depth analysis on the changes of purpose of penalty in the period of social transformation in four social development stages that human beings have experienced,namely “primitive society","slave society","feudal society" and "capitalist society",we found that: economic reform was the fundamental reason for the change of purpose of penalty,political change was the most direct reason for the change of purpose of penalty,and cultural changes have promoted the change of purpose of penalty directly or indirectly.However,the change of purpose of penalty would hardly occur without systematic change of economy,politics and culture.For example,in the feudal society of China,the economic,political and cultural system built on Confucian thoughts formed an ultrastable social structure,which could survive the circle of disintegration—reconstruction;therefore,the purpose of penalty remained in a stable state till modern times,during which no substantive change occurred.From the perspective of criminal law,purpose of penalty is the logical starting point as well as terminal point of the criminal law system.The dynamic character of purpose of penalty plays a decisive role in crime,punishment,criminal liability and the change and development of the causation of criminal law,and is a necessity for the change and development of various elements under the criminal law system.Thus it can be seen that the dynamic character of purpose of penalty has a vital position in the understanding of the development of criminal law system from a macro view and the systematic and real-time adjustment of the contents of criminal law system so that the entire system could remain scientific.It is necessary for the development of criminal law.The dynamic character of purpose of penalty leads the path for the scientific establishment of purpose of penalty in our country at present.The fourth chapter focuses on the dynamic character of purpose of penalty and the establishment of purpose of penalty in our country.The direct purpose of the dynamic character of purpose of penalty is the establishment of a scientific purpose of penalty.The establishment of the purpose of penalty is the important content and crucial part of the dynamic character of purpose of penalty,and an important part of realizing the dynamic character of purpose of penalty as well.The relationship between the dynamic character of purpose of penalty and the realization of purpose of penalty is the relationship between general and special,and the relationship between process and important nodes.In such context,the establishment of purpose of penalty has to be achieved in the dynamic character of purpose of penalty.The Dynamic Character of Purpose of Penalty performed an in-depth study on the question of how could a country or region establish an appropriate purpose of penalty in a specific period of time from historical,philosophical,social,criminal law and other different perspectives,revealed the universal law of development of the purpose of penalty,and set out the direction for the establishment of purpose of penalty in our country.To sum up,the establishment of purpose of penalty shall observe the “external criteria”,the “internal criteria” and the “aesthetic criteria”.Led by the dynamic character of purpose of penalty,basing on Marxist theory,the author provided arguments for the establishment of purpose of penalty in our country in this chapter.The guiding ideology of the Party and the country,the socialist public ownership economic system,the basic economic system in the primary stage of socialism with public ownership playing the dominant role and diversified ownership economy developing simultaneously,the political system of the people's democratic dictatorship and the basic culture system have determined that the just retribution in pursuit of “substantial justice”,positive general prevention and positive special prevention ought to be the requirements of purpose of penalty in our country;however,the economic status quo of being in the primary stage of socialism and the contradictions arising therefrom,as well as the restrictions of objective reality have determined that negative general prevention and negative special prevention have to be our choices from time to time.The organic combination of the five aspects constitutes the system of purpose of penalty in our country.Just retribution is the foundation of purpose of penalty,without which other aspects thereunder would deviate from the direction,or even deteriorate.Therefore,it is a bottom line that cannot be overstepped.Positive general prevention and positive special prevention are the developing trend and direction of purpose of penalty,and the guarantee of realizing sustainable crime prevention,which are going to play increasingly important roles throughout the system of purpose of penalty.And negative general prevention and negative special prevention shall be strictly limited,and are expected to decline in the development process of purpose of penalty.The system of purpose of penalty is an open system.The fifth chapter is for the dynamic character of purpose of penalty and the realization of purpose of penalty in our country.The final purpose of the dynamic character of purpose of penalty is the realization of purpose of penalty.As a result,the realization of purpose of penalty is both the most important content of the dynamic character of purpose of penalty,and a significant part of realizing the dynamic character of purpose of penalty.The relationship between the dynamic character of purpose of penalty and the realization of purpose of penalty is the relationship between general and special and the relationship between process and outcome.Therefore,in a certain sense,the realization of purpose of penalty is the realization of the dynamic character of purpose of penalty--the two share identity.In such context,the realization of purpose of penalty has to be achieved through the realization of dynamic character of purpose of penalty.Consequently,the dynamic character of purpose of penalty determines the route of realization of purpose of penalty.Ultimately,the realization of the dynamic character of purpose of penalty depends on the exercise of power of penalty.Since it is the most basic and direct carrier of the dynamic character of purpose of penalty,power of penalty is the specific approach to realize the purpose of penalty.In this chapter,the author delved into the realization of purpose of penalty from four continuous procedures: right to development of penalty,right to requesting penalty,right to measurement of penalty and right to execution of penalty,provided a comprehensive description of the main contents of the realization of purpose of penalty in each stage under the guidance of the dynamic character of purpose of penalty and the principles to be established in each stage for the realization of the purpose of penalty,and particularly analyzed the existing substantive and procedural problems and their countermeasures during the exercising of power of penalty in our country.Only through improving the power of penalty—the most direct carrier—and scientific exercising of the power thereof,can we better realize the purpose of penalty as well as the dynamic character of purpose of penalty.