| Criminalization and decriminalization are two aspects of the problem of conviction. Influenced by the traditional thought way, however, the criminal law judicial practice weighs only on criminalization in a long term. Along with this situation, there are not enough legal reasons exited in our criminal law system , and there is also an absence of decriminalization in the theory of conviction. Therefore, once a man is judged in the criminal judicial procedures, he is deemed to be called a "criminal". This phenomenon is not according with the requisition to convict rationally .On the ground of the theory of principle of legally prescribed punishment for a specified crime, this article brings about the opinion that we should set up a system of negative conviction in our criminal law, and enlarge the bound of the decriminalization, only by which could the function of decriminalization be realized in our criminal law. This dissertation, is divided into four parts altogether except the introduction and epilogue, word about 33000 in full text. In the introduction, the author discussed the situation, the legal reason and the necessity of the decriminalization system in our country. In the first part, after the depict of the decriminalization situation, the author claims that the main reason for this problem is we emphasize on criminalization too much but neglected the decriminalization. On the contrary, the decriminalization system has its necessity and rationality, we should weigh it heavily in our research of criminal law theory. In the first chapter, the author mainly discussed the concept and the meaning of the decriminalization. In the author's opinion, the decriminalization means the action which meets the positive component of conviction, but is not considered guilty since it bears the negative component of conviction. The system of decriminalization in criminal law is not only good for the restricting the scale of crime, but also good for the saving of the judicial resource, furthermore, it helps the realization of the rational criminal policy. In the chapter two, the theory basis of the decriminalization are discussed. The author think that freedom and the order are both opposed and united. When conflict appears, the freedom is prior to the order according to the modern nomocracy theory. In the theory of criminal conviction, the punishment without merit is forbidden, meanwhile, the unpunishment within merit is not prohibit. The economy of criminal law is the representation of the culture of criminal law which restrict from overlarge scale of conviction. The chapter 3 discusses the relation between the decriminalization and the theory of criminal component. Firstly, the article analyse the differences of the theories of criminal component in three legal system ,and then put forward the opinion that thereis a function default in Chinese criminal law in respect of the theory of criminal component. The author also claims that to reach the goal of rational conviction, we should set up a layer of negelective factor in the judicial judgement on the basis of the positive factors. The ways of decriminalization were discussed in the Chapter 4.They include legal rease for decriminalization, and the rease not contained by the law. The author argues that the salvo in No 13 article has the Chinese character. However, it can't be regarded as a definitude cause of decriminalization, it only shows a standard of decriminalization. Though as a kind of legal cause of decriminalization, the existence of self-defence and defence of necessity are not enough. Out of this consideration, the causes of decriminalization in the sur-regulation should be admitted. The theory of anticipated possibility could not be judged as a legal cause of decriminalization, but it is just a standard. Thereby, the system of decriminalization must be improved. The epilogue part summarizes the main opinions in this text. |
