Research On The Theories And Principles Of Clemency

Since ancient times,looking back on the historical records of mankind,all countries have Clemency practices around the world,but what is Clemency? Why Clemency? How to Clemency? Although there are different opinions,they are not the truth of Clemency.Because the topic of Clemency is full of controversy for a long time,and there were little practice of Clemency in China,so the research on Clemency has been on the edge for a long time.Reviewing more than 100 materials research of Clemency,although it involves a wide range of research,such as “death penalty Clemency” in criminal law,“Clemency procedure” in procedural law,“Clemency power” in constitution,“Amnesty ” in international law and even“Amnesty” in financial and tax fields,in fact,the research of Clemency were mainly focus on “Clemency system”.In other words,there are relatively few “theoretical studies”on the origin of Clemency.Therefore,this paper focuses on the research of“the theories and principle of Clemency”,discusses the legitimacy and rationality of Clemency behavior,and puts forward the suggestions of China's Clemency institutionalization based on the theories and principle of Clemency.First of all,what is Clemency? On the basis of combing the etymology and meaning of the Chinese and English words of Clemency,analyzing the previous explanation of “pardon,privilege,remission,abandonment and extermination”,combining with the logic function and practice of pardon,the author thinks that pardon can be defined as “the subject of pardon should be punished in accordance with the established law for the sake of mercy,sympathy and forgiveness,and the purpose is to realize the original behavior of punishing social utility.”Secondly,why Clemency? According to the causal relationship “pursuit of cause”,Clemency comes from punishment;similarly,why punishment? Punishment comes from crime.Therefore,following the clue of “crime punishment pardon”,this paper analyzes the necessity and reason of pardon,and makes further analysis on the theory of Clemency reason:(1)the theory of Grace.In the form of Clemency,it shows the behavior of “giving grace” to the subject,but in essence,it is intended to show the absolute will of the subject of Clemency,that is,the criminal should obey the absolute will of the subject unconditionally-“repay grace”.(2)the theory of Mercy.The form of Clemency is the benevolent act of sympathy for the unfortunate,but in essence,it is intended to clarify that the benevolent reaches a “consensus” based on the sympathy mechanism and the judgment and evaluation of the social members' suffering to the punishment of the criminal-conforming to the choice of public opinion,that is,the will of the benevolent is subject to the influence of the common will of the social members.(3)the theory of Forgiveness.The form of Clemency is the victim's “forgiveness” behavior of forgiving the offender,but in essence,it is intended to show that the physical and mental changes of the offender meet the conditions of forgiveness,and the subject of forgiveness chooses to make the relief and punishment of the offender,that is,the will of the forgiver is affected by the sincerity of the offender's “transformation”.Thirdly,what for Clemency? According to the causality of “seeking results”,Clemency the pursuit of results,what results to pursue? On this basis,Clemency who?Who will pursue the result? ——Criminal,that is,pursuing individual justice of criminal;who is involved? ——The relationship between the offender and the victim-the subject of Clemency and the object of Clemency,that is,to pursue the justice of the relationship between the parties of Clemency.Therefore,following the clue of “the individual justice of the criminal-the justice of Clemency the relationship between the parties”,this paper analyzes the theory of Clemency purpose:(1)the theory of enhance justice.In the form of Clemency,the state relieves the excessive punishment of the criminals,but in essence,it aims to punish the criminals based on the retaliation principle of “same quality,same quantity and equal harm”,so as to realize the pursuit of individual justice that the criminals should be punished.(2)the theory of repair justice.In the form of Clemency,the offender takes the initiative to bear the responsibility and the victim relieves the punishment,but in essence,it is intended to clarify that the victim and the offender reach a “consensus” under the condition of voluntary,so as to realize the just pursuit of “repairing the relationship”between them.(3)the theory of transitional justice.Amnesty is expressed in the form of amnesty for war criminals or mutual agreement between the war participants,but in essence,it aims to stop the war or conflict and restore the just pursuit of peace.Fourth,how to approve the Clemency? On the basis of clarifying the concept of Clemency and the theory of reasons and purposes,we can find the principles of humanism and utilitarianism contained in Clemency.Clemency of “punishment for crime relief” itself reflects “Humanitarianism”;at the same time,mitigation of punishment includes reducing or reducing the cost of punishment,which reflects“utilitarianism”.In the theory of Clemency reason,the theory of grace aims to restore the will of the criminal,the theory of mercy is to sympathize with the misfortune of the criminal,and the theory of forgiveness focuses on the criminal's remorse for being a new man;in the theory of Clemency purpose,the theory of enhance justice is to reduce the criminal's excessive punishment,the theory of repairing justice is to restore the interpersonal relationship between the criminal and the victim,and the theory of transitional justice focuses on the suspension of amnesty War restores peace to protect fundamental human rights.In other words,pardon should follow the principles of “Humanitarianism” and “utilitarianism”.Finally,the author puts forward some thoughts on the institutionalization of Clemency.This paper reviews the practice of Clemency in China,summarizes the“Commonness” between the existing theory of reasons and teleology of Clemency,condenses the “agreement” of Clemency subject,the “equivalence” of Clemency conditions and the “consideration” of Clemency effect,puts forward the contract style interpretation of Clemency,puts forward the improvement of the basis of Clemency substantive law,the formulation of rules of Clemency procedure law,the temporary establishment of special Clemency institutions and the protection of the criminal's right to request Clemency.