Research On The Foundation Of Modesty And Restraint Of Criminal Law

From modern times, there appeared Anthropologism, Humanism and the concept of human rights guarantees. Under the influence of these thoughts or concepts, the modesty and restraint of criminal law appeared in the twentieth century. The modesty and restraint must be studied systematically in order to eliminate the adverse effects of penalty aggravation and instrumentalism, which is from the nation standard penal conception, and the theoretical orientation of the modesty and restraint also should be studied deeply.Firstly, the thoughts of the modesty and restraint can be found from the entire history of criminal law, including the theory and system of Roman law, enlightened thinkers, classical school, positive school and Ancient China. When clearly put forward by Japanese, the scholars all over the world began to explore and study the modesty and restraint of criminal law. Under the influence of this theory, a series of practical activities and innovation emerged in criminal justice system.Secondly, there has been much dispute over the theoretical orientation of the modesty and restraint, which is very important to the system of this theory. Because the fundamental characteristics, the guidance, allsidedness and variability, the modesty and restraint should be the guiding ideology throughout the whole kingdom of criminal law, which is also the foundation of the criminal policy.Thirdly, as is made by mankind, the study of criminal law can not be separated from the human. So does the study which is on the foundation of modesty and restraint. From the humanism perspective in criminal law, the foundation has three principal aspects, which are closely related to each other. The first place is goodness coexisting with evilness in human nature, which decides the certainty and farsightedness of crime. The second place is the harm, limitation and cost in punishment. The third place refers to the necessary human rights guarantees, which requires limiting the power of national punishment. Its macro tool is the criminal policy of Combining Leniency with Rigidity under the circumstance of harmonious society. Its specific performance is the reform of penalty reprieve and socialization of sentence.At last, under the current condition and the chances which are made by Amendment 8 to the Criminal Law of the People's Republic of China, the approaches to achieve the modesty and restraint are: to ethicize the concepts of criminal Law, to insist on the criminal policy of Combining Leniency with Rigidity, and to reform the criminal law that could limit the criminal circle and penalty circle.