| The traditional relationship between crimes and penalties is non-reversing which means crimes determine penalties.Over recent years,with the increasing cases of the unbalance between crimes and penalties caused by legislative factors,the rationality of the traditional relationship between crimes and penalties is being questioned.Some scholars have begun to reflect on the relationship between crimes and penalties,and the penalty-influencing-conviction theory has been receiving more and more attention in law circle.Penalty influencing conviction begins with the imbalance between the conviction and the sentencing.It rethinks the relationship between crimes and penalties and focuses on correcting the imbalance.With more in-depth studies,the knowledge system of penalty influencing conviction has been formed and is being gradually integrated with the theory of criminal law.Currently,scholars hold various opinions on the newly-emerging theory of penalty influencing conviction.Theoretical circles have different understandings of the reversed relationship.Even among the scholars in favor of this theory,the views on the substantive connotation,the scope and direction of the theory are inconsistent.Researchers are not even talking under the same context.However,the discussion over the legitimacy of the penalty influencing conviction,starting when the theory was put forward,is the core of the current controversies over the theory.The penalty influencing conviction is rather controversial because it is a subversion of the traditional relationship between crimes and penalties.Scholars try to analyze the penalty influencing conviction from perspectives of criminal policy and hermeneutics.However,to gain a place in the theoretical circle,it must also be justified by the theory of criminal law itself.The supporters and negativists hold their own views based on different standings.The disputes between the two sides focus on whether the penalty influencing conviction violates the traditional relationship between crimes and penalties and the principle of a legally prescribed punishment for a specific crime.In fact,it is penalty determination rather than penalty influencing conviction that most negativists criticize and there are misunderstandings of the penalty influencing conviction.In relation with the traditional relationship between crimes and penalties,penalty influencing conviction is not a complete negation or abandon of the traditional relationship between the crimes and penalties,but to advocate the construction of an interactive criminal-penalty relationship;in relation with the principle of a legally prescribed punishment for a specific crime,penalty influencing conviction is in essence not against the essential requirement of the principle.The principle of balance between crime and punishment requires the integration of crime and penalties and focus on the necessity and appropriateness of the application of penalties.Penalty influencing conviction and the traditional criminal punishment are functionally complementary,so conviction influencing penalty has its reasonable core contents.Therefore,this theory should be justified and given more attention.In this thesis,relevant issues of penalty influencing conviction are generalized,and penalty influencing conviction is justified from the theoretical perspective of criminal law;the application path of penalty influencing conviction are put forward in hope of more improvements in relevant theories and practices. |
