Tolerance Of The Spirit Of The Theory Of Criminal Law

The restraining spirit of criminal law is a term that has been widely used in the study of modern criminal law. The idea of the restraining criminal law gradually influences criminal law reform measures of various countries. There is no doubt that the restraining spirit of criminal law produces a considerable impact on our traditional criminal law ideas, the study of the theory of the restraining spirit of criminal law and the practice, will further change the function of criminal law, make it better safeguard human rights, play an important role in the construction of the society ruled by law.The criminal law scholars in different decades researched the restraining spirit of criminal law from different perspectives. However, the present status of criminal law is concerned, on the one hand, the idea of the restraining criminal law is not popularized, on the other hand, only a few scholars abstractly discuss the basic requirements of the restraining spirit of criminal law. The essential, concept, history, legal basis, society basis, value, realized methods and the enlightenment of our country criminal law of the restraining spirit of criminal law will be discussed in this paper.This paper, except introduction and postscript, has five sections,40,000words.The first section is about the essential and concept of the restraining spirit of criminal law. The restraining criminal law is pursued as a kind of value to the criminal law by people, and it’s a kind of idea, spirit. Therefore, this paper discusses from the restraining spirit of criminal law. In my view, the restraining spirit of criminal law, is pursued as a kind of value, which means in the process of the formulation and implementation of the criminal law, our country should control the scope and level of the criminal law according to certain rules and humanized execution, appropriately adjust its own stringent, in order to protect law profit and safeguard human rights.The second discusses Chinese and Western history of the restraining spirit of criminal law. Then it shows that the formation and development of the restraining spirit of criminal law. In Western, the ideas, including the modern idea of criminal law of humanism, natural rights, popular sovereignty, a treatise of human nature, individual liberation, fraternity, liberty, equality before the law, appeared one by one, which produced the profound historical origin of the emerge of the restraining spirit of criminal law. The restraining spirit of criminal law was systematically expressed and generally accepted until the middle of the18th century. In the end of Chinese primitive society, at the beginning of the criminal law, the ideas including "cautious punishment","light punishment", and "sentence to no punishment" were carried out. This was an important characteristic of punishment thought in the history of our country. In slave and feudal society, the laws were basically about criminal, and the punishment was harsh, the ideas of Severe-Penalty Doctrine took an important position, in such history background, the ideas including "bright virtue and careful punishment", light punishment started to appear.The third analyzes the theoretical basis of the restraining spirit of criminal law. It is the core content of this paper. For one thing, mainly discusses from various perspectives of jurisprudence, including the criminal law protection status, change of understanding on the function of the criminal law, the limitation of the criminal law, and so on. For another thing, social factors, including the foundation of social structure, political base, economic base, cultural base and policy, influence the restraining spirit of criminal law.The fourth introduces the value of the restraining spirit of criminal law. In my opinion, the restraining spirit of criminal law includes three parts:first is the tightening of criminal law, it means the regulation range of criminal law and the use of punishment means are limited; second is the complementarity of criminal law, criminal law is the most strict legal sanction, which determines the auxiliary status in maintaining social order; third is the economy of the criminal law, this tendency has different embodiments in both legislative and judicial.The fifth section suggests the realized methods of the restraining spirit of criminal law and discusses the perfection of Chinese criminal law considered the practical situation. One is the restraining of crime:decriminalization, the other is the restraining spirit of the punishment, including non-penalization and light-penalization. The basic ideas of Chinese criminal policy all embody the connotation of decriminalization and non-penalization.Finally, it further stresses the importance of the restraining spirit of criminal law from the angle of our country current legal process.