Detention Penalty In View Of Light Punishment

As one kind of the major penalties in the penalty, detention penalty procures neither proper research nor a satisfying applicable effect. At present, there are scarcely any monographs on it, and the few theses involved in it were published too long ago. Similarly in practice, either in terms of the number of execution, or in terms of its executional effect, detention penalty seems to be playing "a minor part "in the big family of penalties. On the basis of these facts, I choose to write about detention penalty, to make a deep research into this "minor part" — its position in the historical development of the penalty, its present situation and its possible tendency in the future. In the family of the penalty, whether detention penalty should be an indispensable member or not, should it develop and improve itself with the progress of penalty or exit off the stage of history? Here is my answer, based on my field research and painstaking work of analysis on the rules by which the penalty has developed in history.By discussing its origin, controversies, reform and development, I then give an account of detention penalty being executed in China, point out some defects of it, and comment on the reform measures for a short-time penalty in some western countries to enlighten detention penalty in China. After much analysis, comparison and demonstration, I reach the following conclusions:Ⅰ. Detention penalty supplements with penalty in history, it can be thought to have existed with the appearing of the state machine and penalty. Detention penalty possesses a long history just as the penalty possesses a profound one. But too much dependence on body penalty and death penalty in ancient times has stunted the development of it.Ⅱ. Despite the defects revealed during its development, no one country is ready to abolish it up till now. Although some scholars advocate replacing detention penalty with property penalty or a penalty that limits one's freedombut does not deprive him of his freedom, for example, punishment of control, various defects are still revealed in the applicable effect. So these substitutes are still worth considering.III. Since detention penalty is a kind of the penalty, I must analyze for its future from the tendency of development in the whole penalty. The penalty has been showing a tendency towards light penalty and socialization of execution .But of course we can't adopt light punishment blindly for its sake, regardless of the present state and social security situation in China. While there is a limit to light penalty, but we can't deny the fact that light penalty is an inevitable tendency when the penalty is developing from heavy punishment to light punishment. Consequently, as one kind of light punishment, detention penalty should have a lot to achieve. Similarly, socialization of execution is another tendency of the penalty, of which a thorough consideration is made in this thesis. And some of its regulations are in agreement with the meaning of socialization of execution, such as having one or two days off each month during one's time of serving in prison, and getting certain pay accordingly for his work. (Though these regulations are not executed in effect, they already show the legislature's intention, and can't be devalued merely because of imperfect execution.) This proves detention penalty is going in the same direction with the penalty, not in the opposite direction.The three points above are conclusions drawn from my research and writing work. Detention penalty not only faces the danger of being merged into the integration of freedom penalty, but is also questioned and challenged because of its dissatisfying executional effect. But, after careful analysis and comparison, I believe neither the integration of freedom penalty nor those substitutes can deny the significance of detention penalty as an independent item. Therefore, I think it is necessary and also has value of research to discuss whether to retain or abolish detention penalty, and to study it as seen in light punishment, both for guiding practice in executing this law, and for filling upthe gap in the academic studies of detention penalty.The development of every kind of penalty has its historical inevitability today. For example, death penalty has experienced a change from being overly applied to being restricted and finally to being abolished, which is related to the social and material culture. Similarly, detention penalty has changed from being " an ornament " in the past to being "neglected "now and possibly to being applied more in the future, which is also related to the social development. So it's safe to say with the perfection of legislation and the progress of social civilization, China will, too, change from the structure of heavy punishment to the structure of light punishment, just like the western countries, and there will be more appliances of detention penalty. Even though no substitutes for detention penalty are as suitable for China as detention penalty itself, it will still have strong vitality as long as we persist in the perfecting of it on its application and executional pattern.A rational country deals with criminals rationally. It's impractical to blindly believe in the penalty and try to solve everything with it. In fact, it's because they have no other choice that humans are regulating the society with the penalty. So we should be cautious about using it. The starting of detention penalty faces another problem: For what crimes should the penalty or the lightest penalty be started? Briefly, we can say all the crimes that are defined in the criminal law as needing to take criminal responsibility can be given a penalty. Then what qualities or elements are involved in the light penalty is also a question deserving the penal jurists' consideration. As this thesis only analyzes whether to retain or abolish detention penalty by discussing its history, present and tendency of development, there is no mention of the light penalty. But what degree of light offense can start the penalty and what kind of crimes should be regulated by the penalty, all these questions deserve our consideration and further study.In one word, the penalty has always followed a route from heavy...