Research On The Mitigation Of Penalty

In the vast volume of human history,the study of criminal law and mitigation of punishment is an indispensable part of legal research.The mitigation of punishment is a manifestation of the progress of human civilization.Its ideological source can be traced back to the ancient legal proverb: "it is better to mitigate punishment than to be severe".The mitigation of punishment is relative to the severity and cruelty of punishment.It is a trend towards mitigation in the evolution of punishment.As an objective trend,the mitigation of punishment is clearly visible in the evolution history of criminal law.Advocating that the punishment should be mitigated is not to exclude the severe punishment,but to blindly use the light punishment and advocate "decriminalization".Advocating the mitigation of punishment does not mean that all crimes should consider the mitigation of criminal sanctions.Instead,it advocates abandoning the idea of severe punishment,establishing the concept of humanity and the rule of law,shifting from the focus on depriving or restricting the rights and interests of criminals and defending the society to the focus on human rights protection,gradually abolishing the death penalty or strictly restricting the application of the death penalty.The right choice is to be strict when it is strict,to be wide when it is wide,and to combine leniency with severity.It took more than 300 years for western countries to basically abolish the death penalty,making the punishment more mild.The development of mitigation of punishment can not be achieved overnight.The development of mitigation of punishment in China needs time,patience and confidence.As a kind of ideology,the idea of penalty mitigation has existed since ancient times.The idea of "Ming morality and cautious punishment" in ancient China included the idea of penalty mitigation.However,as a relatively systematic theoretical system that has a great impact on the reform of penalty mitigation in later generations,it is mainly derived from the theoretical construction of Enlightenment thinkers,criminal classical school,criminal modern school and scholars of the new social defense movement after World War II.Ferri pointed out that penalty is not a panacea to deal with crime,and penalty substitution measures should become the main means to defend the society.The new social defense theory holds that social factors can not be ignored,that society is responsible for criminals to a certain extent,and that criminals should have the right to request re socialization;The execution of punishment should give full play to all aspects of society,respect their personality and embody humanitarianism;The protection of human rights and the protection of society should not be neglected,and a certain balance should be maintained in the value of criminal law.The mitigation of punishment is based on the modesty,humanity and limitation of punishment.Its development trend conforms to the contemporary value concept of paying attention to the protection of human rights and pursuing the humanity of punishment,and has a profound impact on the practice of criminal justice.Judging from the world background,the mitigation of punishment is the result of the development of humanitarianism and the progress of human rights protection.The active advocacy and promotion of criminal law scholars and international organizations have initiated the system design of mitigation of punishment;Through the criminal legislation of most countries in the world,the abolition and restriction of the death penalty,the socialization of the execution of free punishment,and the application of non custodial punishment have promoted the realization of the mitigation of punishment,but the mitigation of human punishment is still far from complete.For a long time,China has lacked the concept of mitigation of punishment.There are also the ideas of omnipotent punishment,extensive punishment and severe punishment.The traditional concepts have been deeply rooted in people’s minds,which violates the basic concept of penalty value.It has been proved that it can no longer meet the requirements of the development of modern civilized society.In theory,there is also a lack of comprehensive and systematic research on the trend of mitigation of punishment.Under the background of the worldwide trend of mitigation of punishment towards criminal policy,the promotion of mitigation of punishment should become an important issue in China’s criminal law theory and judicial practice.The construction of the rule of law in China must be a systematic and systematic construction process.If there is no systematic research and planning for the construction of legal system,the follow-up "micro" institutional research is only piecemeal,and its role is limited.The economic base determines the superstructure.The rapid development of economy,society and culture inevitably requires the corresponding reform of the national governance system and governance capacity,and the rapid response and profound changes in the field of the rule of law(system).Professor Chen Xingliang pointed out that the whole criminal law and criminal integration both view criminal law from the perspective of system theory,oppose the isolated study of criminal law,and advocate that criminal law should be analyzed in the whole legal system and social relations.The research field of criminal law itself is relatively narrow.We must broaden the research field of criminal law and deepen the research level of criminal law.It is necessary to study the philosophy of criminal law above criminal law,the sociology of criminal law outside criminal law,and the jurisprudence of criminal law under criminal law.In addition to the theoretical study of criminal law,we should also pay attention to social reality and the construction of national rule of law.Only in this way can criminal law not only be a doctrine of law,but also have practical effect.This paper follows the idea of finding problems,analyzing problems and solving problems.In terms of finding problems,this paper adheres to Liszt’s overall concept of criminal law,and finds out problems from the perspectives of legislative statistics,judicial research and analysis,law enforcement status,academic attitude,official position,philosophical value,system theory,etc.After the analysis,it is concluded that the general direction of the penalty reform is to ease the punishment,but there is still a "heavy" phenomenon in the aspects of legislation,judicature and execution.Should we advocate the mitigation of punishment at present? Why is there a contrast when you want to? How to systematically promote the mitigation of punishment? How to grasp the "degree" of mitigation of punishment? This is a problem that runs through the whole paper.In the aspect of analyzing problems,through the comprehensive analysis of history and reality,domestic and international,value and reality,subjective and objective,logic and history,theory and practice,possibility and feasibility,it is concluded that the mitigation of punishment is a historical trend.The next step is how to promote and realize the lightening? In the aspect of solving the problem,the author puts forward the Chinese scheme of the mitigation of punishment.On the basis of demonstrating that our country has the economic,political and legal culture of the mitigation of punishment,this paper shows the author’s affirmative position on the mitigation of punishment.Based on the methodology of system theory,this paper puts forward feasible suggestions in the aspects of ideology,criminal policy,legislation,judicature,implementation,coordinated supporting measures,etc.We should be sober to see that the "non systematization" of the research and practice of mitigation of punishment can achieve "mitigation of punishment",but it is difficult to achieve "mitigation of punishment",thus it is difficult to achieve the expected purpose and value,and it is also difficult to achieve the expected social benefits.The relatively lagging research on the whole criminal law with the methodology of system theory is not only a problem in the process of mitigation of punishment,but also a reason for the slow process of mitigation of punishment.Therefore,the mitigation of punishment is not the mitigation of sentencing in simple criminal legislation,nor is the Chinese plan for the mitigation of punishment a simple legislative plan or specific legislative measures,or is it just a judicial and law enforcement plan and some reform measures,but the renewal of ideas,the reshaping of the concept of punishment,the construction of penalty theory,the optimization and implementation of criminal policy,criminal legislation and judicial reform,the adjustment of penalty implementation Comprehensive,dynamic and systematic consideration of other legal coordination guarantee and other measures coordination follow-up.Based on this,this paper discusses the mitigation of punishment from the following six aspects:The first chapter explains the concept of mitigation of punishment,and analyzes the track of mitigation of punishment in China and the world trend.Through the research of this chapter,it makes clear what is the mitigation of punishment,and proves that the punishment in China and the West does show a trend of mitigation.In the study,based on theory,legislation and judicature,it is concluded that the mitigation of punishment is not only the world trend,but also the direction of China.The second chapter discusses the justification of the mitigation of punishment.On the basis of proving the trend of mitigation of punishment,the next step is to demonstrate the justification behind this phenomenon.This chapter is divided into four sections.The first section dialectically analyzes the historical mission and drawbacks of severe punishment doctrine.It not only objectively examines the historical mission and periodic value of the doctrine of severe punishment,but also points out that the drawbacks of the doctrine of severe punishment should be reflected and reviewed simultaneously,so as to lay the foundation for the proposition of the mitigation of punishment;The second section analyzes the value of the mitigation of punishment;The third section demonstrates the economic,political and cultural basis of the mitigation of punishment;The fourth section demonstrates the legal basis of the mitigation of punishment,that is,through the exploration of different theories of the mitigation of punishment,it comes to the conclusion that the humanitarianism,modesty and limitation of punishment are the main theoretical basis for the justification of the mitigation of punishment.The research of this chapter provides a strong theoretical and practical support for the proposition of mitigation of punishment.The third chapter is problem oriented.On the basis of clarifying the trend and justification,through empirical analysis,it further points out the current situation and existing problems in the process of mitigation of punishment,which is also one of the important values of this paper.This chapter is divided into four sections.From section 1 to section 3,it combs,counts and analyzes the current situation of the legislative practice,judicial practice and penalty execution practice in Chinese and Western countries and international organizations.Through comparative research and empirical analysis,it further clarifies what problems exist in the process of China’s penalty mitigation? Why? The analysis of the problems and the reasons for their existence has found the right direction for solving the problem and provided a frame of reference for the design of China’s program of mitigation of punishment.The first three chapters provide the theoretical basis and practical experience for the later three chapters of China’s scheme,and provide an explanation of "feasibility and necessity" for the design of China’s scheme of mitigating punishment.The fourth to sixth chapters are "breaking the topic".Based on the methodology of system theory,this paper puts forward a Chinese plan for the mitigation of punishment from the perspective of the overall study of criminal law.In the past,the research on the mitigation of punishment in China was often carried out from a certain point or an aspect.And the research on the involved areas is not systematic and comprehensive.Just as some criminal law scholars pointed out,"the mitigation of punishment is a grand proposition","the overall criminal law is to view criminal law from the perspective of system theory,oppose the isolated study of criminal law,and advocate that criminal law should be analyzed in the whole legal system and social relations." Taking the system theory as the methodology is an effective way to construct the mitigation scheme of punishment and realize "China ruled by law".The last three chapters are divided into three levels and put forward feasible suggestions.The fourth chapter is the consideration of the concept,theory and system of mitigation of punishment,which is the prerequisite or basic condition for the construction of China’s program of mitigation of punishment in essence.In short,in order to promote and realize the mitigation of punishment,we should first establish a correct concept,that is,we should break the infatuation with the doctrine of severe punishment and reshape the concept of mitigation of punishment that is in line with China’s reality;On this basis,we should strengthen theoretical research,and rethink and reconstruct our view of penalty from the aspects of politics,economics,philosophy,law and so on.It advocates strengthening the interdisciplinary integration and gradually constructing the theoretical system of the mitigation of punishment;On the basis of theoretical support,and on the basis of national conditions,world conditions,people’s conditions,Party conditions,etc.,this paper puts forward the basic views and assumptions on the scientific construction of the theory and system of mitigation of punishment,which is pre emptive or forward-looking thinking.The fifth chapter is about the suggestions on the reform of criminal legislation,judicature and penalty execution.This chapter is divided into three sections,with the direct goal of realizing the mitigation of punishment,and puts forward some suggestions on the reform of criminal legislation,judicial perfection and the improvement of penalty execution.The sixth chapter emphasizes the construction of coordinated measures to realize the mitigation of punishment.Ansel advocated that "criminal law is not the only or even the main tool to deal with crimes...It should go beyond the scope of punishment...At the same time,it should also use civil law,administrative law,social law,education,health,social welfare organizations and other methods." Based on this,this chapter proposes that in order to realize the mitigation of punishment,we should also consider the coordinated promotion of educational non penalty measures,civil non penalty measures,administrative non penalty measures and other measures,so as to inject fresh blood into the development of China’s mitigation of punishment.General Secretary Xi Jinping has repeatedly proposed to establish the people-centered concept of human rights,strengthen the protection of human rights by law,strengthen systematic research on the rule of law,and strengthen the construction of national governance system and governance capacity.With the in-depth dissemination of the Xi Jinping Thought on the rule of law,the wide acceptance of the concept of a harmonious society and the importance and promotion of the systematization of the rule of law,the means of social regulation are becoming more and more abundant,and punishment is only one of many means of social regulation.At the same time,we should see that the road of mitigation of punishment in China should start from a broad sense,should be systematically designed,should follow the effect orientation,and should be considered as a whole from above,under and outside the criminal law.The direction of the mitigation of punishment is clear,but the construction of relevant theories,the reform of legislation,the perfection of judicature,the perfection of execution,the infiltration of the culture of rule of law,and the follow-up of supporting measures all need systematic thinking and gradual promotion.