The Restricted Application Of The Preventive Punishment In Contemporary China

Penal code of our country has experienced the ninth revision last year,the law are increasingly expanding trends in the changes,increased by more than 20 kinds of charges,and aggravate part of the legal punishment of crime.The author thinks that it is the embodiment of the legislature attaches great importance to the preventive punishment in some fields.To counter the trend of expansion on the prevention of penal legislation,theory and practice have different opinions,the author think cannot treat as the same,within the scope and degree of appropriate give full play to the advantages of prevention punishment and avoid the disadvantages of preventive punishment,we don’t have to be swayed by considerations of gain and loss.But in the judicial of our country has shown the unreasonable trend of preventive punishment’s excessive expansion often do not explore the essence of punishment,according to aggravate the actor and the necessity to prevent any severe punishment,this is sentencing behaviors that violate human rights.Prevention of necessity is not an abstract concept,can we impose on any crime,there must be a reasonable basis.So at this stage in the criminal justice in contemporary China,the reasonable application of preventive punishment is to limit the application of the preventive punishment.First preventive punishment restrictions has its theoretical basis.First of all,has its own law philosophy foundation.Principle of a legally prescribed punishment is the eternal law of criminal law,its two derived principles:tolerance and in equilibrium are required to prevent the offense and penalty to limit in a reasonable range,of the criminal law is a last resort to resolve social disputes,cannot,in an attempt to replace other means the occurrence of crime prevention in advance,so that lead to excessively heavy punishment is contrary to the spirit of modern humanitarian and criminal law.Preventive punishment of the restrictions on the use of its law basis.Second,there is the basis of law and economics.From the Angle of economic man,utility maximization,market equilibrium analysis,it is concluded that the application of the punishment should also be in line with the economy,the result of excessive use of prevention and punishment of punishment did not play a positive effect,in order to execute penalty,the country’s social are taking excessive punishment economic burden,the longer it will be harmful to the Chinese characteristic socialist market economy healthy and orderly development.Second,the mainland punishment law of Germany’s penalty development,the ancestors of the development of the prevention and punishment of legislation and judiciary in Germany for a stark contrast to the degree.In legislation is a process of gradually pay attention to,and presents a kind of marginalized in judicial trend,this is mainly because the difficulties of special prevention and general prevention.Third,from the recent judicial interpretation will find that our country’s judicial interpretation of abuse preventive factors characteristics,in order to punish the high-risk crime and criminal policy play a preventive purposes,the first is to expand the scope of the crime,the second is to a large number of the crime constitution factors and preventive factors aggravate punishment,this is mainly due to the excessive emphasis on high-risk crime judicial organs and did not distinguish crime constitution factors and preventive factors.Finally,from two aspects to correct this mess in the prevention of punishment in our country apply:the first is to set up correct concept of punishment,the second is to clarify the scope of the preventive factors to prevent confusion.