Reflection And Reconstruction Of The Function Of Criminal Law From The Perspective Of Social Governance

As for the current social governance of our country,the importance of criminal law is self-evident.The function system of criminal law and its constitution are the primary factors that influence the condition of ruling of criminal law in our country.It can be said that the function of criminal law is related to the overall,fundamental,basic and key issues of ruling of criminal law.Although there are some treatises on it,it has not reached the level that can meet the needs of current social governance in China,not even touching the main points of theoretical research.However,these studies have basically failed to achieve the escape of the two old major functions of the criminal law,that’s protection of order/legal interest and human rights.During this period,some scholars began to pay attention to the function of criminal law and the contemporary proposition of the time.In my opinion,this is a new research field and method,and it has the significance of practicing criminal law.Therefore,it is worth affirming and advocating.In view of the current situation of construction of ruling of law in our society,and the important position of function of criminal law in the whole criminal law system,even in the field of criminal justice,there are far from enough on the research of the level of function of criminal law that the quantity and quality of which has achieved.For meeting the needs of social governance,and matching the theoretical and practical status of function of criminal law,what kinds of functions of criminal law do we need? What impact will it has on our criminal justice? This deserves further consideration.After all,in the context of social governance,the traditional functions of criminal law have some complications such as maladjustment,inconsistency and inflexibility on the face of risk society and non-traditional security.It is necessary to reconstruct the functions of criminal law so as to better cope with various unhealthy symptoms in modern society.This is also the historical mission and contemporary task of the functions of modern criminal law.The function of criminal law should be studied in depth from the perspective of social governance in China.From the epistemological point of view,its research focus should be on the essential function and extension function of criminal law.On the ontological level,it should be based on the legal function of criminal law.That is to say,its emphasis should be on dynamic interpretation of criminal judicial,it is also the applicable interpretation’s function of criminal law.Criminal judicial interpretation is very important in the perspective of social governance.Dynamic interpretation of criminal justice,factually,it refers to the criminal justice process,or the process of judicial interpretation.The criminal judicial practice of applying criminal law by judicial officers has effect on social governance greatly.In view of this,the author’s discussion on the function of criminal law is not only satisfied with the abstract and profound theory,it will also focus on the criminal justice practice.The main contents of this paper can be divided into seven parts.Introduction,it outlines the basic theoretical issues of the function of criminal law,including the definition,characteristics,specific content of the functions of criminal law,researching status,theoretical significance,social significance,practical significance,historical changes and so on.In discussion on the definition of function of criminal law,refers to the difference and connection between the function of criminal law and the task of criminal law.At the same time,it also discusses the relationship between the function of criminal law and criminal law of functionalist.Chapter Ⅰ,from a global perspective,it discusses the system of social governance and the function of criminal law in China’s context.It focuses on the relationship between social governance and ruling of criminal law,as well as the relationship between the concept of criminal law and the function of criminal law.The concept of criminal law will determine the function of criminal law.But,the function of criminal law and even criminal policy which born under the stimulation of social expectation and demand,will affect the formation of a certain concept of criminal law.According to the current social situation of our country,it is necessary to re-examine and rethink the traditional functions of criminal law.Firstly,the function of criminal law is inseparable from the social situation.To some extent,it is subject to the social situation.At the same time,criminal law is a powerful means of social governance.It has a certain function of integrating society,such as social governance function,social control function,and social defense function.Secondly,the Third and the Fourth Plenary Sessions of the Eighteenth Central Committee of the CPC have repeatedly mentioned to promote the modernization of the state governance system and governance capacity.It puts forward new requirements for criminal law which as one of the important tools of social governance.Therefore,it is necessary and urgent to re-examine,position and even reflect on the function of criminal law.Chapter Ⅱ,it constructs the system of functions of modern criminal law.There are some predicaments of the function of criminal law at present.In this situation,the traditional functions of criminal law(i.e.dualism)have been revised and adjusted to a certain extent.It is necessary to reconstruct the system of function of criminal law.The specific architecture is illustrated in this chapter.Chapter Ⅲ,it focuses on the modernity of law,legislative level and judicial level.The extension of the function of criminal law is discussed.From the legislative level,we should mainly grasp the substantive,positive and main functions of criminal law;it is the function of punishing crime.Therefore,we need to master the size of the crime circle.It requires consideration of the norms of behavior,protection of freedom and the society.We should also consider and reasonably grasp the functions of criminal law in form,side and extension.It just is the function of protecting society.The key point is how to deal with the relationship between accusation,prosecution of crime and protection of the legitimate rights and interests of offenders and victims and other stakeholders.From the judicial level,we should play the interpretation function in application of criminal law fully.This is also a concentrated reflection of judicial initiative.In the field of philosophy,from the ontology,it is clear that the legal function of criminal law is not equal to the regulatory function.It’s just the internal self-operation that is also the function of interpretation in application of criminal law.This is a monistic view.From the epistemology,it mainly solves the external effects(such as deterrence function,maintaining stability),and objective functions(such as combating crime).In fact,it is not divorced from the two major functions of punishing crime and protecting society.This is the view of dualism.At the same time,it elaborates the relationship between the two functional theories concretely.Additionally,it also discusses the social attributes of the function of criminal law and its modernity.Chapter Ⅳ,it discusses how to strengthen the function of criminal law in legislation.It discusses the value orientation and basic position of criminal legislation in risk society.In particular,it points out that in the criminal legislation of risk society,in some areas,the response of criminal law is too sensitive.While in other areas of social governance,it appears to be lagging behind or weak.Therefore,it is should be flexible to adjustment and balance of response on legislative of criminal law.In addition,it also focuses on the theory and practice of abstract dangerous crime.In the field of criminal legislation on non-traditional security,it analyses the degree of concern of criminal law to people and society through the development trend of the amendment to the Criminal Law.At the same time,through the analysis of typical cases of terrorism crime,ecological environment crime and new type of telecommunication fraud crime,it puts forward some countermeasures and suggestions on criminal legislation.Finally,the development trend of our criminal legislation,especially the Amendments of Criminal Law,are considered from the aspects of criminalization and decriminalization,livelihood criminal law and risk criminal law,negligence theory,etc.Chapter Ⅴ,it discusses how to strengthen the function of criminal law from the judicial point of view.The function of criminal law should be strongly embodied in criminal procedure.For example,in the stage of examining arrest and prosecution by procuratorial organs,we should give play fully to the function of interpretation in application of criminal law,as well as the function of combating crime and guaranteeing human rights.This is also a reflection of the practical value of the function of criminal law.Especially,it puts forward the effective ways and safeguard measures to fully realize that operates to the system of functions of criminal law under the current situation of inspection of arresting and prosecution.In the court stage,the three parties,prosecution,defense and trial should use the applicable interpretation of criminal law effectively from their respective standpoints.Give play fully to the interpretation function of criminal law,in order to perform their respective roles and responsibilities.Chapter Ⅵ,Full and effective functions of criminal law can not exceed its boundaries.This is mainly reflected in the process of interpretation and judicial discretion of criminal law.Among them,interpretation of criminal law should follow the principles of purposiveness,clarity and social adaptability.The size of judicial discretion is determined by three dimensions.These dimensions are also the main functions of criminal law.At the same time,interpretation of criminal law in judicial discretion should follow the restraint of the principle of legality in form.In essence,it is dominated by social harmfulness.Finally,in line with the above,the causes of the concept of light punishment and superiority of procedure are analyzed and criticized.Furthermore,several typical theories of weakening the functions of criminal law and infringing on the territorial sovereignty of criminal law are analyzed and criticized.On this basis,the countermeasures are put forward,especially in judicial practice;some cases of intersection of criminal,civil and administrative laws are divided effectively.