The Purpose Of Punishment And Its Realization

In review and retrospect of the theories of purpose of penalty,the author finds that there has not been a minimum consensus on the purpose of penalty so far both internationally and nationally,esp.in China, scholars hold a variety of perspectives thereupon.This paper,defining the meaning of purpose of penalty,contemplating the theories of the civil law jurists and the views of Chinese scholars,advances my own view on purpose of penalty of"balanced retribution and prevention".My main view is that the purpose of penalty in nature embraces two aspects,retribution and utilitarian,claiming that the idea that purpose of penalty is preventive or retributive is one-sided and not advisable. Therefore,retribution or teleological theory can not give a good and comprehensive explanation of the purpose of penalty for both of them have their own inherent flaws which cannot be ignored.In my view,retribution cannot be equated with utilitarian;neither can utilitarian be treated as the main footing in pursuing of utilitarian purpose, complemented by the pursuit of fairness and justice of retribution.The correct way should be just the opposite,which is the best choice for purposes of penalty.The kernel of the approach of balanced retribution and prevention lies not only in the acknowledgement and the pursuit of the retributive purpose of penalty for fairness and justice,but also in the positive pursuit of the utilitarian end,thus achieving both justice and efficiency.In the pursuit of utilitarian purpose,special prevention is given the priority to general prevention,and if we must pick one from retributive justice and preventive utilitarian,the former one will necessarily be the choice.Due to the different theoretical foundations,the two are opposite and repulsive in their relations,but compatible and unified on the other hand. Therefore,the relationship between the two is both antagonistic and unified.However,the unity of the two is conditional,not termless and absolute. To explore purpose of penalty is not our fundamental motive.More importantly,on the basis of understanding of the purpose of penalty,how to achieve the purpose of the penalty and what kind of approach can be effective enough to achieve it are what we aim to probe into.In other words,the fulfillment of purpose of penalty is what we seek;therefore,it is the indispensible key element of the study.Considering the broad contents in fulfilling the purpose of penalty,this paper covers what I personally consider important,including the principles to achieve the purpose of punishment and statutory configuration,related systems of short-term sentences,death penalty,recidivism and surrender,and the execution system of commutation of sentence and parole.Finally this paper points out that crime is the result of social contradictions,and it is difficult to achieve the purpose of penalty to just rely on penalties to punish the offenders after the commission rather than from the perspective of society to eliminate or at least reduce social conflicts.Therefore,I believe that criminal penalty is merely one of the means to cure social disease,but not the only means.