Thoughts On Power Of Criminal Penalty

Power of criminal penalty has always arouse great attention among people because it involves the rights of formulating penalty, estimating penalty, executing penalty and sentence recommendations, which are crucial nowadays with the continuous development of China's legal system, the regulation of law operation and the deeper investigation of the legal thoughts. Today, under the circumstances that our country has stressed the importance of running the country by law, so people's legal consciousness has been strengthened day by day, the power of criminal penalty begins to play a vital role. Though the legal process has speeded up for recent years, there still exist some cases which maliciously violate and tread the power of criminal penalty with no respect to the criminal law as well as the law. These cases have yielded baneful influences and unlawful wounding to the people. Therefore, the study on the problems of power of criminal penalty can discover and correct the illegal practice and offer some views for the future development and perfection of the power.This thesis starts with the origin of criminal penalty by introducing the four rights for sincere consideration, which are the rights of formulating penalty, estimating penalty, executing penalty and sentence recommendations. The definition, connotation, significance, historic development, contents, current development, existing problems, etc. are introduced so as to present the problems for thought. By studying the fundamental problems, the basic tasks of the power of criminal penalty has been discussed, that is, punish the crime, be fair and square, and reform criminals.Chapter two firstly elaborates the basic concept of punishing the crime and the theoretical basis of its existence. There are three statements concerning punishing the crime in all ages: divine retribution, moral retribution, and legal retribution. Then with the exposition to the basic concept of being fair and square and the theoretical basis of its existence, it can be drawn that being fair and square means everyone is equal before the law and crime punishment adapts to the law. Lastly the basic concept of reforming criminals and the theoretical basis of its existence are illustrated, included the statements of remoulding criminals'ideology, subjective-objective combination, remoulding personality, and comprehensive reformation with the purpose to propose the three measures to reform criminals: reform through labour, reform through education, and prison management. The analysis of the basic tasks of the power of criminal penalty has been carried out in order to find out the problems, and eventually solve them. Chapter three proposes the contents of the power of criminal penalty which should be reformed on the process of its development, namely, legal provision, clear definition line and complete programme. Meanwhile, it is stated that the scope of the right of formulating penalty, the contents of the rights of sentence recommendations and estimating penalty, and subject of the right of executing penalty should be regulated. The relationship between rights of sentence recommendations and estimating penalty, and the relationship between rights of estimating penalty and executing penalty should be defined by laws, as well as their scope of rights, so as to avoid power abuse and crossing. Finally the suggestions have been put forward on the procedure of penalty measurement, free jurisdiction procedure and parole procedure, and a summary to the whole thesis is done in the end.On the consideration of the problems concerning the power of criminal penalty, this study is aimed to make some breakthrough in theory and provide some enlightenment and references in judicial practice in order to make certain contribution to the development and research of the power of criminal penalty.