On The Basis Of Legitimacy Of Penalty

Since the reform and opening up,in parallel with social development,the legislation has become extremely active.With the deep development of the rule of law society,legislators use criminal punishment as an effective means of social governance to actively carry out criminal legislative activities.The formulation and revision of criminal law may be biased towards the lack of subjectivism in criminal law.At the same time,the introduction of life imprisonment as a new "penalty measure" is not fully demonstrated.The continuous investment of punishment is like finding a panacea for the governance of society,and criminal law activism is further ingrained.Further,we need to consider the reasons for actively investing in penalties.Whether penalties are the preferred social governance tool,whether the value of penalties is only for punishment and prevention,will there be more different combinations when the two are combined.After proposing the criminalism activism tendency and the criminal law subjectivism and the punishment of the sentence,this paper tries to reflect on how to choose the appropriate punishment by clarifying the legitimacy of the penalty.After raising the research questions,I began to explore the influential doctrine of the justification of punishment.First of all,it explains the main doctrine of retribution theory,from Kant’s equal retribution to Hegel’s equivalent retribution,discussing the evolution of the connotation of controversy and the inherent deficiencies of various retribution.It is the utilitarian theory that forms the theoretical system and confronts the retribution theory,from the heavy threat of the initial form of utilitarianism to the classical utilitarianism that emphasizes the threat of legislation,to the positive general precautionary theory that seeks other effects than the deterrent effect of punishment.It is the general form of prevention of utilitarianism.Special prevention no longer emphasizes the prevention of crimes of most uncertain people,while it turns the target of prevention to the perpetrators.Correction treats the offender as a patient and treats the punishment as a medical treatment.The theory of deprivation of crimes argues that penalties should defend social offenders while deprive the perpetrator of his ability.Liszt’s comprehensive theory combines comprehensive correction theory and deprivation of criminal ability,which argues that we may correct the person who can be corrected and deprives criminal ability of uncorrectable person.There is an inherent flaw in retribution and utilitarianism,and the combination of the two becomes a universal choice.But how to combine the retribution and utilitarianism,is it based on retribution to limit utilitarianism,or based on utilitarian restrictions,or other mergers? Feuerbach and others have given different combinations,but the advantages and disadvantages still need to be further investigated.According to the value of law,that is,justice,order,and freedom(humanity),after analyzing the respective values of utilitarian and retribution,it can be seen that a kind of punishment once and for all is not based on the theory.The key point is not to find a combination and method of retribution and utilitarianism as a universal medicine that can remain unchanged,but a suitable combination mode suitable for social development.After reflecting on the recent heavy penalties of legislation and criminal law activism,based on the justification of the criminal law,this paper puts forward some suggestions for the mitigation reform of the future penalty reform.First of all,in the wave of reforms in which the penalty is lightened,the abolition of the death penalty is progressive,but the more severe punishment of life imprisonment as a kind of death is itself a progressive one,but it does not meet the mitigation of punishment without the justification of punishment.Secondly,the paper proposes suggestions for changing the implementation period and the floating probation period for the mitigation of life imprisonment.The mitigation of the statutory penalty is carried out,and fine penalty is used as prisoners for a part of minor crimes.And it put forwards the suggestions for the transformation from the mode of felony and heavy punishment to the mode of the French net which is big but not harsh,and expanding the criminal circle.Thirdly,it puts forward the proposal of trial statutory parole for the parole reform in the process of penal enforcement,and proposes a pre-trial public exchange system for the establishment of a real-quality criminal procedure to realize the comprehensiveness of sentencing information.Finally,the mitigation of penalty is extended to the pretrial detention process.This paper proposes to provide special procedural safeguards for the respondent’s application for alternatives to protect the human rights of the accused.