In continental law school dispute

 

A brief introduction of the continental law system, the old school and new school

In the western criminal law theory, long-term existence of old school and new confrontation between two camps. The old school is also known as the classical school, can be divided into the old school (the criminal classical school) and the late old school (later the classical school). 

The old school to Beccaria, Bentham, Kant, Feuerbach, Hagel as representative,Produced in the18Century,Formed in18At the end of the century to19At the beginning of the century, The theory of social contract, natural law theory, is a criminal law school capitalism rising period reflect bourgeois ideology of criminal law and criminal policy. 

As the old theory failed to stop the19Crime wave of century of western countries, new to the19Century,Refers to rely on Natural Science, analyzing the causes of crime by scientific evidence, the development of criminal law school prevention of crimes of criminal policy. Because the new are studied in the empirical method, also known as the positivist school.New style can be divided into criminal human school and School of criminal sociology, the former toLombrosoAnd Garofalo as the representative, pay attention to biological causes of crime; the latter to Phil,The late Lester as the representative, pay attention to the social causes of crime. New style is based on the old school attacked and criticizedSet up, old two views can give tit for tat, there are significant differences in view of crime and punishment concept etc..

To refute the new point of view, the old school in the late19At the end of the century, Bellinger formed, to binding, Birkmeyer, Meyer, Metzger, Ono Shinichiro as representative.

    The classical school puts emphasis on human free will, the empirical school emphasizes the physiological characters. Therefore, in the theory of crime, the former advocated non determinism, objectivism, realism, the latter advocates determinism, subjectivism, sign doctrine; in the penalty theory, the former advocated absolute, emphasize the general prevention, the latter advocates relativism, pays great attention to the special prevention.

 

    Two new factions, the continental law systemThat form the criminal classical, modern school and its basic thought

(a), the formation of the old school and the basic idea

The old school was produced in the bourgeois revolution background, opposed to the feudal autocratic feudal criminal law, and the theocracy, the emerging bourgeoisie thinkers in drawing the reasonable elements of the history of the natural law idea, systematically proposed the bourgeois human rights, rule of law, democratic theory, formation of the classical natural law school. The criminal classical school can be divided into relativism and absolutism. Representative of the criminal classical school relativism is Italy Beccaria, British Bentham, Germany's Feuerbach; representative of the criminal classical school absolutism is the Germany of Kant and Hagel. Although the two theories are different, but the basic idea is the same.

Theoretical basis of old school is rational philosophy, the theory of social contract, the theory of natural law, advocating individualism, the legality, principle of suiting punishment to crime and penalty humanitarian point of view, advocates of free will, behaviorism, moral responsibility, retribution, general prevention. That the people have to choose their own behavior of free will, but to abandon good from evil, so if the illegal act is objective, can accuse, investigate its moral responsibility; the penalty is the evil for evil, to investigate violations of responsibility, prisoners must to some punishment, to suffer the rather, the so-called retribution; that in addition to mental abnormality, the human spirit is the same, harmfulness of crime and finally to see crime. The severity of the crime and depends on the severity of crime, that is to say, the severity of punishment are no exception, so the severity of punishment should be commensurate with the crime seriousness.

(two) the new form and the basic idea

New in19Century appeared. At that time, Britain and France and other countries of the feudal autocracy has been destroyed, the bourgeois completely achieved the dominant position, their task is to destroy the feudal autocracy to the consolidation and development of the rule of the bourgeoisie. At this time, capitalism has developed into the monopoly stage, although the city industrial development, economic increase, but also appear many social problems, the workers opposition class and the bourgeoisie, the increasingly serious crime, recidivist, recidivist, juvenile delinquency, crime prominent women...... For these new problems, the criminal classical school is incapable of action, can't explain and reasonable treatment. At the same time, on the basis of bourgeois enlightenment, research results of positivism, Darwin's theory of evolution, natural science is applied to the domain of the social sciences. Thus, "with the positive and operating characteristics, with the criminal policy as the core" of the Criminal Modern School (including criminal human school and School of Criminal Sociology) emerge as the times require. Its founder, Italy criminologist Lombroso, other representatives are Galofaro, Phil Lester, Makino, UK etc.. The Group believes that the focus of criminal law theory should centre is to act as the center to human behavior;The crime and not crime results of freewill choice, but decided by social reasons or personal pathological reasons (for example, Cesare Lombroso believed that crime is a kind of human atavism or degradation phenomena, there are so-called "born criminal", and different crime even have different physiological features, such as rapists often moist lips) ; penalty purpose was to defend the society, namely social prevention, rather than retribution;The birth of the education penalty theory, thinks that we should adopt coercive measures for different types of crime, such as imprisonment, mandatory medical, indefinite penalty. "To sum up, the new proposition determinism, behavior of humanism, social responsibility, improve the punishment, the special prevention."

(three), the late old school theory and the old school and new school theoretical differences

"The new ideas, old scholars to give a strong counterattack, launched a criminal law school debate on the true meaning of the ''." Representative Binding, Bellinger, Bi Ke Mai Ye, Mai Ye's late old school. The late old school theory and the old school there are many points in common, such as that of free will, advocate objective behavior and the engine based on free will shall be imposed with equivalent retribution. But later the old school and the old school also has some differences:The old school theory obviously tend to liberalism, while the late old school nationalism, authoritarian color relatively strong; the old school retribution to general prevention and retribution for the purpose, the late old school is inclined with absolute retribution, strong sin; the so-called freedom of will - old school is a sense of the concept, and later the old school believes that free will is metaphysical, not the cause of free will;The old party law and ethics are the strict distinction between the old school, later will be treated as law and ethics. "To sum up, the late old school advocates of free will, behaviorism, moral responsibility, relative retribution, but compared with the previous old school, has obvious nationalism, authoritarian tendency."

The old school and new embodies the theoretical differences:

1On the causes of crime on the performance of the doctrine of free will and determinism opposition;

2Opposition in the theory of crime on the performance of objectivism and subjectivism;

3In the essence of the responsibility on the performance of the opposite moral responsibility theory and the theory of social responsibility;

4In the theory of punishment on the performance of the opposition of retribution and purpose theory of punishment;

5In the view of crime and penalty concept for confrontation between individual standard and social standard.

Generally speaking, old school, new school normative facts. The old often from the specification of standard, and is generally formulated; the old school also pays attention to personal freedom, in the general rules apply to a specific person, to the relief of human weakness, and individual study of personal knowledge level is general specifications. The new general from the fact, that all people are different, some innate social danger is a crime, while others do not have. But at the same time pay attention to the social defense, even think, do not have the knowledge of people in general are harmful to society, so, they require that all the people in the standards of ordinary people.

 

The criminal law of continental law system, the thought of three-- two representative figures and their thoughts

A.The main idea of old school representatives have:

1Beccaria's "the crime reason is environment specific personal choice", "the essence of crime is the social contract in violation of the" measures ", the crime is the standard of social harmfulness of crime", "the necessity and timeliness to prevent crime is very important", "severe punishment is invalid";

2Bentham's "to avoid the bitter pleasure dominates all human behavior", "crime are many reasons", "to remedy the methods to deal with the crime", "crimes own malignant and crime cause social panic determines the crime of evil";

3Kant's "law based on the social contract", "behavior because of will freedom under the rational choice", "the purpose of punishment and crime is equal";

4Feuerbach's "criminal justice thought of legal state", "theory of psychological compulsion", "power against the said";

5Hagel's "crime is a social harm the wrongful act", "the purpose of penalty is the retribution and crime equivalent".

 

B.The main idea of the new representative:

1Lombroso's "crime is an Atavism", "crime depends on many factors", "crimes against the people of different types with the corresponding criminal disposal";

2Phil "crime causes three element theory", "theory of crime saturation", "punishment of alternative measures", "the theory of social responsibility";

3Natural crime and statutory crime of Garofalo "(concept)", "a measure of crime standard is the dangerousness of the criminal", "the crime of different types with the corresponding criminal disposal"

4Lester's "the causes of crime dualism", "social responsibility theory", "social defense theory", "educational theory".

 

C. The continental law systemTwoThoughts of criminal law

To understand the theory of criminal law of continental law system, mainly the jurist, first of all need to understand the continental thinkers of the criminal law theory and criminal law point of view, to understand the ideological evolution. Civil law jurists and thinkers in the criminal theory, can be roughly divided into the following four stages:

(a) general prevention enlightenment theory

1Cesare Beccaria, Italy1738A1794.. He is the criminal law thinkers of enlightenment is the most representative, his criminal law focuses on his views on1764The book "on crime and punishment" in one book, he thought, the law should be liberated from the religious doctrine, basic penalty exist only within a social contract. The people according to the social contract and the establishment of national and law making, law is the people united into the social conditions. People to give up part of freedom to the country, to the freedom and safety without disturbance to enjoy the rest of the social contract, which cannot be contained in the penalty means not just punishment. The seriousness of the crime, should not be to the behavior of human evil meaning of God and the Holy damage for the scale, but should take on social damage as the scale to determine. The purpose of penalty is to make ordinary people away from crime, more than the necessity of this kind of punishment is unfair. The death penalty and corporal punishment is unfair punishment, in principle should be abolished. He advocated in the criminal law to carry out the legal balance of crime, criminal law, the principle of equality, against the status in criminal law is not equal. He argued against the Spartan general prevention, punishment, to promote the rational individualism, rationalism. His thought is the basis of modern theory of criminal law.

2Cesare Feuerbach, Germany1775A1883.. He thinks, should strictly distinguish between law and moral, crime is not on ethics violations, it is a violation of the law, should strictly distinguish between the boundaries of crime and unethical behavior. The nature of the crime is granted to the rights of criminal law, as long as it is in the prevention of right is infringed, is justified. At the same time, he also put forward the "theory of psychological compulsion" theory, support the legal principle of crime and punishment Beccaria proposed. He thinks, the person is the advanced animal draw on the advantages and avoid disadvantages. People are used to calculate the rationality of pleasure and pain. If the crime will be happy than to be punished greater pain, he will go to the crime;If the crime will be happy than to be punished more painful hours, he would not have to commit a crime. In order to prevent crime, need to explicitly stipulated in the law on the implementation of what kind of behavior subjects to what kind of punishment. He advocated, psychological compulsion to ordinary people are psychologically not to commit the crime. In order to make the mind force effectively, we must, to the notice of the penalty. When the provisions of the law and the actual implementation is to make ordinary people from crime punishment is necessary, just punishment.

The criminal law theory of Feuerbach and Beccaria, to the establishment of the legal doctrine and objectivism theory provides a theoretical basis for the. Therefore, their two people known as the "father of the science of criminal law".

3The British philosopher Bentham1748A1832.. Although he is a British thinker, but the development of the theory of continental law system have made outstanding contributions. Bentham think, only pay attention to the general prevention of criminal law is not enough, but also pay attention to the special prevention of criminal law. If it is to intimidate criminals, so the punishment is not sufficient. In order to prevent recidivism, necessary to carry out the education and correction on the inmates. He believes that, only in the warning, improve, isolation, the criminal reconciliation between the five economic principles of the compensation to the victims and criminal law, can cause the penalty to be legitimate. Obviously, the criminal law theory of Bentham is the criminal law theory of utilitarianism, he tried in the criminal law the most thoroughly rationalism.

In summary, the Enlightenment thinker of the Enlightenment of the theory of criminal law, is the general prevention theory as the main content, trying to overcome the cruel penalty by relativism, realize the rationalization of the criminal law.18After the middle of the century, European countries affected by the enlightenment, the criminal law reform powerful.1789France's "Declaration of human rights",1791Years of "French penal code",1810Napoleon in France, "penal code",1813"In German Bavaria penal code", reflects the ideology of criminal law and the principle of enlightenment thinkers.

 

(Two19By mid century, represented by Kant and Hagel's Retribution

During this period, the relevant criminal law thinkers, jurist and main views of representative:

LKant, German philosopher1724A1804.. He stood in the position of metaphysics, based on the meaning of freedom, advocate the absolute retribution. He thinks, criminal law is not a public purpose, as justice, only to acts committed the crime the reason of penalty. Sentencing is the principle of equal retaliation, advocate the crime and the penalty phase equilibrium. Kant's concept of criminal law is freedom and individualism of the criminal law.

2Hagel, German philosopher1770A1831.. Hagel advocates the rational analysis of the penalty, although he also holds retributive punishment, however, does not advocate the individualism of the retribution, and advocated nationalistic dialectics of retribution. Hagel think, the crime is the negation of the law, and the restoration of law and justice by negative crime penalty again. Crime is the crime based on the meaning of freedom, if the country does not deny the crime, crime of human reason can not be restored. Accept the penalty is the rights and obligations of the criminal, to treat the crime as a rational man. Hagel believes that Feuerbach's theory of psychological compulsion is regard as a dog. He thinks that, even in the presence of illegal behavior objectively, as long as this kind of behavior is not out of freedom mean performance, can not be punished. The theory of Hagel has the effect of limiting state power of punishment.

3German criminal law experts, binding1841A1920.. Binding to stand in absolute retribution standpoint, put forward the theory of retributive punishment norms and legal. Binding think, the crime is violation of the norms, and not only violate the regulations of criminal law and regulations, only stipulates the legal relationship between the state and the offender. Violate the regulations do not directly crime in violation of criminal law as the premise, only the laws and regulations of specification, it is crime. Specification is prohibited or command for the common social security benefits and has the capacity to act. Specification as a prerequisite for shape regulations contained in the criminal law and regulations. Only for the violation of the norms of behavior, can the penalty power. Countries through the use of punishment to punish crime, maintain law and order. Criminal damage to the legal order is greater, more severe punishment for the. Binding norms and legal retribution theory exerted a great influence on the German criminal theory.

In the field of criminal law theory of criminal law, usually with Feuerbach as the representative of the enlightenment and the binding as the representative of the retribution penal theory, collectively referred to as the criminal classical school of criminal law theory. However, because the two are quite different, so in theory, the former is called the classical school, the latter called late classical school.

 

(Three19During the past half century of modern criminal school(The empirical school)Special prevention theory

During this period, the criminal law has the jurist and representative views are:

1Criminologist Ron Bubo Rosso, Italy1832A1909.. He adopted the research methods of positivism, the causes of crime are studied. He was in prison, physiological characteristics of hundreds of prisoners in particular head characteristics were carefully studied, to draw the conclusion that, there are some natural crime. These people haven't finished the biological evolution, genetic gene with inferior characteristics and crime. They don't adapt to society, doomed to crime, only their long imprisonment or Exile Island, will not harm the social. Of course, his views on the causes of crime belongs to the fatalism, not science. However, he adopted the research methods of positivism, have epoch-making significance.

2Italy criminologist, Phil856A1929.. His view of Cesare Lombroso was modified, he thinks the crime are many reasons, reasons of biology, physics, social science. The early classical free meaning theory is a fantasy, to the meaning of freedom as the premise of meaningless retribution. He believed to the dangerousness of the criminal as the foundation, take the crime prevention measures, should be based on the sanctions method instead of punishment.

3Cesare Lester, Germany1851A1919.. On the causes of crime, he also believes that the causes of crime are various, has its own reason, and reason in all aspects of society, and is the social causes. Therefore, in the cause of crime, he was known as a criminal(Crime)The school of sociology. He also uses the positivism method to study the cause of crime, it is also called criminal(Crime)On behalf of the empirical school. Lester in the prevention of crime, claim intent penal theory. He thinks, the penalty must be to prevent crime for the purpose, it is necessary to different people with different penalty. The opportunities for crime and casual offenders by threatening punishment, by improving the punishment of criminals may improve the impossible crime, improve the life imprisonment or the death penalty, so it can be harmless. The penalty should be based on the dangerous character actor for the object. However, only the actor's dangerous character in action, to inflict punishment on the. That is to say, only sentenced to have personal danger man to.

The criminal law to Cesare Lombroso, Phil and Lester as the representative of the positivist school known as the criminal modern school, also known as the new school.

 

(Four20In the middle of the century and theory

In the20At the beginning of the century, a heated debate between classical and modern school. School major struggle between Germany's Bi gram Maier and Lester. Bi gram Maier to the classical school freedom theory, discusses the criminal responsibility. Lester thinks, whether liberty is a philosophical problem, not the problem of the criminal law. People should scientifically explore crime, adopt corresponding methods of social defense. Bi gram Maier think, penalty originated in revenge, but was purified. Retribution penalty nature are believed to be unshakable legal. Lester thinks, should use the social defense this new purpose theory of punishment instead of retribution concept of the past, in order to achieve the purpose of crime prevention, the purpose of defending the society.

1920Years later, after Maier and Lester died, ending the dispute form school, incline the classical school and modern school mutual fusion. Under the background of new era, the scholars in the criminal law theory or classical tone, or in the criminal law theory of modern school for the tone, and the classical normal thinking method and Modern School of empirical study attitude, to construct their own theory of law. As a trend of knowledge, in Germany and Japan, in criminal law theory of the classical school as the foundation, absorb the modern school principalRose linerIn France, criminal jurist Ansell proposed "new social defense theory", from the modern school is near to the classical school. In legislation, most countries adopt the penalty and security measures and legal system, it also showed two fusion.

 

Four, the old and the new school of crime contrast

(a) the old school principal difference between the two different views of the crime,Including the causes of crime, there are different views.

1The old view of crime

Beccaria from the mechanical materialism standpoint,That the crime is the inevitable result of social injustice,Is the inevitable choice of people draw on the advantages and avoid disadvantages in specific environment. In the view of Beccaria,The root causes of crime is the social structure social contradiction.In the measure of the standard problem of the crime,Beccaria insist objectivism,That measure the crime is the behavior standard that social harm suffered,Instead of the criminal intention,Sentencing should be according to the crime objective harm process to decide.

Bentham put forward the utilitarian view of crime. He thinks,The tendency of hedonism is human nature,All the rules of human behavior,Including crime. Crime refers to "all based on can produce or may produce some evil reason people should be prohibited". In the division of types of crime,Bentham will be the crime into private crime, crime, quasi public and its related crime, common crime and crime of composite type. In addition,Bentham also proposed a system of crime prevention theory.

Feuerbach advocated strict distinction between morality and law,That crime is not a violation of ethics,It is a violation of the law,Crime is the essence of infringement according to law for rights. A person is a crime,Is due to emotional impulse,The pursuit of crime brings happiness. In order to prevent crime,Must restrain its perceptual impulse,Therefore shall the crime with pain,That is to be punished,And make people know in advance for a crime of torture pain,More than for a crime will be happy,In order to suppress the psychological initiation crime will.

Kant think,Freedom is the essence of the crime reflects the will of the people,Crime is on the deliberate violation of law. Crime is a kind of evil,People can freely choose the crime or non crime. Since people out of their own free will to choose the crime,Selection of evil,Then the society from the moral standpoint can accuse him,Ask the criminal to moral responsibility.

Hagel is regarded as a kind of illegal crime,That the crime is deliberately, lost the method name or false illegal,Is simply the negation of the law openly. The crime not only to individual rights against,But the legal order of negation in general,So it has social danger. Hagel like Kant advocated libertarianism.

 

2The new concept of crime

Criminal intention using empirical methods to study the crime,Particular emphasis on the research of criminals,Derived from the new subject of Criminal Science -- in criminology. The new concept of crime is mainly reflected in the crime causes of crime, crime type and countermeasures.

Cesare Lombroso is the founder of modern criminology,On behalf of criminal humanity school. He through observation and anatomy of criminals,Put forward the famous "born criminal" theory. The basic idea is to:There are indeed a naturally tend to crime types,This kind of crime due to abnormal atavism, degradation of the difference between the a series of physical, physiological and psychological aspects of non criminal. In the eyes of the dragon's,Because the crime is the social inevitable,So,For the protection of society,The penalty is inevitable. Retribution and deterrence is an empty phrase,The penalty exists only is according to the defense community. According to this theory,The social harmfulness of crime and punishment is no longer adapt,But with the danger of crime,The danger of criminals who adapt,In determining the crime and penalty standard,Take subjectivism.

Phil the crime reason three element theory based on old school critical theory of free will. He pointed out that:"We cannot admit that free will. Because if the free will is only us we have the fantasy,It is not the actual function of human psychology exists. The inner consciousness of free will from the fantasy,It is because we do not know to reflect various motives in our psychological and various internal and external conditions when making decisions." Phil completely abandoned the metaphysical conception of free will and behavior choice. Philip proposed the "law of criminal saturation",He pointed out that:"Every society has its crime,The crime is produced owing to natural and social conditions,The quality and quantity is adapt to the development of collective and each society." Filley crime saturation theory,Is actually a crime will be on,But the crime quantity and changes in three factors of crime quantity is proportional to the.

The causes of crime Lester claims two yuan on,Think the causes of crime can be divided into personal and social reasons,Any crime is common the two reasons result,The social factors are the main factors. To eliminate the social reason must mainly rely on social policy,But the penalty is mainly used to remove personal reasons. He clearly put forward should be punished not behavior, but behavior.

 

3Comparison between the old criminal school crime concept

The new, the old criminal school crime view difference is mainly manifested in the following aspects:

The first,Differences in causes of crime on the free will and determinism.

The old school of thought,As long as the reach a certain age, intelligence and mental normal people have free will. The new is fundamentally denied free will,That free will is the human heart fantasy. Any human behavior are interaction of personality and human environment results.

Second,According to the differences of the responsibility on the moral responsibility and social responsibility.

The old school from free will theory,That man as a rational being,You can choose a crime free or not in any particular environment crime. Since their free will choice the crime based on the criminal,Then the society can be morally to his disapproval,Asked him to assume the moral responsibility. New from decision theory,That crime is an inevitable phenomenon is determined by the behavior of human character and environment,But not the result of free will.

Third,Differences between standard crime classification standards of conduct and behavior. Because the focus of old school is concerned, the penalty crime accomplished crime,Don't pay attention to the study of criminals,So,Classification of old party crime basically is based on the crime behavior or criminal violations of the object type. The new built on the basis of empirical research,Study on living criminals,So the characteristics of the crime classification based on criminals,Or,The new focus is the criminal classification,Classification and non crime.

 

(two) the thinker and jurist, crime theory to summarize, can be extracted from eight kinds of criminal theory the following four groups corresponding to each other:

1, non determinism and determinism

Non determinism by the criminal classical school(The old school)The advocate. Non determinism says, man is free, not subject to the law of cause and effect. Whether a person is a crime, depending on their own free will, is not determined by outside factors. Feuerbach, Beccaria, Binding and others are this claim.

Determinism by the positivism school(The new)The advocate. The new view, man is not free, is subject to the law of cause and effect control.

Whether a person is a crime, is restricted by the quality of their own conditions and social environmental factors, especially restricted by social and environmental factors. Crime is the social representation of personal danger person. Criminal liability is based on the personal dangerousness. Cesare Lombroso, Phil, Lester and others have the argument. Cesare Lombroso stressed, whether an individual crime, is mainly determined by the actor's personal qualities, especially determined by genetic factors. Phil, Garova Lo and Lester emphasize, is determined by its own personal qualities and social factors comprehensive decision.

Now the two view in gradually move closer. Non determinism also admitted that freedom of the will of the people is relative, not individual will completely decide whether crime, but also influenced by other factors. Determinism also admitted that, people have the relative freedom of will, had the freedom to choose certain as to whether he to commit a crime.

2, objectivism and subjectivism

The old school hold objectivism views. Objectivism thinks, the nature of crime in the crime and the result crime, people on the outside, should put the focus on crime from external knowledge behavior. The object evaluation of criminal law and punishment the crime objective external, rather than a criminal. Therefore, also known as the behaviorism. Feuerbach, Binding, et al. Beccaria, hold this view.

New to the subjective viewpoint. Subjectivism, crime is the essence of internal factors, behavior, personality risk of crime behavior. Some people because of dangerous character which has its own crime, namely the personal danger, he is likely to commit a crime, even repeated crime. The new crime focus on the behavior of human internal character, therefore, also known as the behavior of humanism. Cesare Lombroso, Felix, Garova Lo, Lester et al. Hold such views.

3, realism and sign doctrine

The old school advocates realism. Realism Thought, object evaluation of criminal law is as external fact behavior. The reality was founded

The facts of the crime. The criminal law is to punish him, is a punishment for his crime rather than punishment. With the evaluation of criminal law significance independent criminal behavior. Feuerbach, Binding, et al. Beccaria, hold this view.

The new idea to sign ". Characterization of view, object evaluation of criminal law is a dangerous character criminal, rather than a crime people's external behavior. Media and characterization of external behavior is understanding of criminal's dangerous character. The criminal law is to punish him, because he has a personal danger. The punishment of the crime and not crime. Crime has no independent meaning of criminal law evaluation. Cesare Lombroso, Felix, Garova Lo, Lester et al. Those who hold this view.

4, social ethics and legal protection

Social ethics thought, the essence of crime is the social ethics violation. The function of criminal law is to protect law Yiwei

Supporting social ethical order. The old school this stands.

The protection of law of view, the essence of crime is against the interests of the law or the legal risk, the function of criminal law is to protect law benefit. New to this claim.

Now it is the protection of law which was revised. That should be used in social ethics on the protection of law doctrine was modified.

That the purpose of criminal law is the protection of the interests of the law to maintain social ethics order. Harmful behavior of the criminal law is the law or the legal interests have dangerous behavior. As long as the behavior is not against the law or the legal risk, even if the violation of the social ethical order, not criminal law on the crime. To understand the nature of the crime should be the protection of legal interest principle as the main shaft.

 

    Five, the old school punishment concept comparison

(a) difference between the old and new school is also reflected in the two different views of punishment

1The old view of penalty

Beccaria believes that "everyone wants to the public to save that freedom to less,Long enough for people to protect themselves on the line. This a crystallization of minimal free form of punishment right. All the extra things are good at the right,Instead of Justice,Is a myth and not a right. If the penalty exceeds the protection set save the public interest needs,It is not fair. The justice of penalty,Keep the monarch subjects safety is more sacred and inviolate,Leave people more freedom." From his social contract theory,Think of the purpose of punishment is only in order to protect the public interest, emphasize the general prevention. "The purpose of criminal law is merely:Stop the criminal re violates the citizen and warn others not to recommit the same error.

Britain's Bentham is the founder of utilitarianism,He believes that people have the tendency of hedonism nature,Therefore,Criminal is to bring happiness to pursue crime. If the criminal is more than the happiness from the criminal punished the pain,The penalty is not a role of crime prevention;In addition,Bentham believes that the public welfare is the sum of individual welfare,The interest of the individual is the only reality interests,So,The necessary personal care,Rather than suppress individual. Therefore,Bentham proposed to limit the application of punishment. In addition,Bentham also opposed the corporal punishment,He believes that because of corporal punishment or because of the state support the victim and Tai Anggui,Either because the country does not provide for the victim and the despair and death;The minor crime death penalty. "There is no special reason,Don't aggravate punishment",Against the abuse of punishment.

Feuerbach is an important representative of the criminal classical school. He will be the legal thought into the criminal law theory system,And put forward the theory of psychological compulsion. In his opinion,People with the pursuit of happiness, pain avoidance instinct. Therefore,Feuerbach think,Must be prior to the legal provisions to the legal consequences of crime,So that people can predict in advance the punishment received after the crime,To make people think that brought after the crime can not be brought about more than happy after the crime punished pain,Thus the prevention of crime.

Kant is another old school important representative. He thinks:"We must recognize that each will have rational thing is free and in compliance with the freedom idea and behavior." Hagel's theory of criticism and revenge,And put forward the theory of equivalence,He thought between crime and punishment is not possible harm,Only the equivalence,Such as "an eye for an eye of the Cyclops how to implement,How missing incisor who answer blows with blows......"

Hagel put forward the famous legal retribution,He made a dialectical analysis of crime and punishment:Crime is for the law to deny,The penalty is illegal(Crime)Negation and restore law and state,The penalty is justified. Hagel believes that the criminal penalty is a respect for the rational,He pointed out that:"Think punishment is contained the prisoner's method,So the punishment he,It is the respect he is rational existence. If not from criminal behavior to find the concept and the scale of punishment,He won't get the respect. If only the prisoners as should make become harmful animal harmless,Or to quit and correction for the purpose of penalty,He is not such a respect."

From the top of Beccaria, Bentham, Feuerbach, Kant, Hagel view of the introduction of,Can be seen,The criminal classical school think crime is criminal results of free will,That crime and penalty should be balanced,Advocating the legality,Focus on objective factors of the crime shape on the outside,That is the main focus of crime,They asked the penalty according to the. The different answers to this question,The criminal classical school can be divided into two camps,The theory of retribution and utilitarianism. The Beccaria, Feuerbach, Bentham is a utilitarian,And Kant, Hagel belongs to the theory of retribution camp.

 

2The new notion of punishment

New style is formed on the basis of criticizing the old school,Cesare Lombroso, Felix, Garofalo, Lester, contributed to the development of the school and grow.

Cesare Lombroso is new the first person to do sth.,He first put the empirical research method into the field of criminal law,Put forward the theory of born criminal. Cesare Lombroso's view of penalty and born criminal Adaptation Theory,He advocated that the purpose of penalty is a complete social defense and the criminal improvement. Maybe using traditional perspective,Cesare Lombroso unpalatable views,Even crazier. But,Cesare Lombroso of criminal law's contribution is not to be underestimated,His main contribution lies in methodology,He realized the criminal law by the concept of deduction to empirical research to change. It is because of his pioneering,The criminology to be established.

According to the principle of crime saturation Phil,That punishment is necessary,At the same time he more alternative measures on punishment. Law of criminal saturation is an important conclusion was analysis in the causes of crime based on the. He pointed out that:"Crime is a social phenomenon by the anthropological factors, natural factors and social factors interact each other. This rule leads to what I talked about the theory of crime saturation,Namely, every society has its crime,The crime is produced owing to natural and social conditions,The quality and quantity is adapt to the development of collective and each society."

 

3Comparison between the old criminal school punishment view

The old school of Kant, Hagel and others thought,Crime is only free to choose rational people,This choice should be respected by others,Society is based on the respect of criminal penalty,In any case can not be himself or others to commit a crime prevention measures. Therefore,The penalty for crimes just retribution,In addition should not seek any purpose. And the old school of Beccaria, Bentham, Feuerbach and others from the point of view of utilitarian point of view,Think that the penalty should pursue a goal,The goal is to prevent crime. In the prevention focus on,Beccaria and Feuerbach advocated the general prevention,Bentham advocated the double prevention. In general,The old school in the crime countermeasures advocates taking the penalty as the main or even the only means of general prevention doctrine. The new research focus shifted to the criminal,In general,The new crime countermeasure advocated social defense theory and special prevention theory.

The new, the old criminal school view of crime important reasons for the above differences lie in their different hypotheses for "people":The old school think that everyone has free will. People choose the crime in the case of free will,Criminal responsibility and deal with the consequences of their behavior. Because man is rational existence,Can the society for human reason based on the respect and the penalty;The same,General to the crime prevention works,Also because the criminals who have rational judgment. The new thought that free will is a myth,People's behavior is affected by both the physiological, psychological and other personal and social reasons results,People are starting to experience social practice experience, inner experience and personal preference. Human behavior,Including the criminal act,Is essentially determined. The punishment of offenders,Is not based on the freedom of the will,But according to the behavioral decision theory. So the criminal responsibility from the nature of speaking,Should be the social responsibility.

 

(two) of the criminal law theory of the thinkers and jurists concludes, may summarize three kinds of Marxist Theory:

1, absolutism

Advocated by Kant, old school Hagel and binding. Absolutism advocated absolute retribution, that the purpose of criminal law is the restoration of justice, punishment is based on the realization of moral necessity as retribution. The criminal penalty, the crime. This karma is the absolute equilibrium. While the three of them have advocated absolute retribution penal theory, but they are different in the retribution principle and specific claims on the way. Kant advocated the principle of equal retribution, Hagel advocates such as the quality of the principle of retribution. Hagel believes that the principle of equal retribution penalty on Kant's easy to draw "absurd conclusion homomorphism revenge". Therefore, he advocated the balance of crime on the quality, rather than simply the number of equilibrium. Binding legal retribution theory based on the idea, in strict accordance with the provisions of criminal law of retribution. He thinks, the crime is the legal order destruction. Therefore, the crime of legal order is damaged more seriously, to the crime person sentenced to punishment which suffering is more serious. On the contrary, the crime of legal order is damaged more small, the sentence the penalty which suffering is small.

2, relativism

Advocated by the new Lester and Ansell et al. Relativism holds that, the criminal law is a means to implement. The penalty power is based on the purpose and usefulness of punishment on crime, rather than absolute revenge. The purpose of penalty is to inhibit future crimes, not in the implementation of criminal revenge. In order to prevent the crime punishment is necessary and effective legal punishment. Objective punishment because of different prevention focus, and is divided into general prevention and special prevention. General prevention is aimed at the general public, special precautions for criminals.

3, and doctrine

Advocated by modern criminal law school. And that penalty is based on the doctrine, justice and purpose. Just the penalty must be not only can meet the requirements of justice, but also can effectively prevent the crime punishment. Should the purpose of general and special prevention in the range of retributive punishment in. Because the combination theory has two aspects of general prevention and special prevention of penalty purpose, more scientific and reasonable, therefore, to be the majority of modern criminal law experts has been accepted and endorsed.

 

     Six, the basic position of China's criminal law

 

Our new criminal law provisions of article3,4,5A very striking down the three basic principles, namely the principle of legality, the principle of equality before the law, the principle of suiting punishment to crime. Some scholars believe that: This is the new criminal law is1979The value orientation of criminal law on democracy, equality, fairness of the most significant sign.

1, the legal principle of crime and punishment

China's criminal law article3Article: "the law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly provided for the crime, not conviction." This is the principle of a legally prescribed punishment provisions

The crime punishment legal principle implication, that it contains legal regulation of crime and punishment:

(1The crime of statutory), reflected in China's criminal law article13On the definition of crime stipulated complete, scientific, No.14Article, article15Article, article16Article, article17The elements of crime, crime, criminal negligence, the accident, the age of criminal responsibility, criminal responsibility and so on were provided. In addition, the specific provisions of criminal law have been clearly defined on all kinds of crimes, provides specific criteria for conviction.

(2) punishment, embodied in: the kind of penalty regulations, at the same time to apply a kind of punishment conditions of restrictive regulations. For example, the death penalty is only applicable to commit the most heinous crimes, crimes; crime when dissatisfied18Years old and the pregnant women do not apply the death penalty. The provisions of the sentencing principles, namely in the criminal facts, the criminal law criterion principle. The criminal law is the specific principles of sentencing provisions were made. The specific crime of criminal law made clear.

2The principle of equality before the law

The criminal law article4Article: "the crime of any person, in the equal application of the law. People will not allow any privilege beyond the law." Known as the principle of equality and the principle of the.

Some scholars believe that the principle of equality, the equality, including the conviction, sentencing and execution of equality equality three aspects:

(1) convicted of equality, refers to any crime, no matter how high, its position is too high much, should be subject to criminal runs without exception.

(2The equal), refer to the same crime, in addition to the statutory heavier, lighter or mitigated circumstances, shall be subject to the same punishment.

(3) execution equality, refers to the execution of punishment should be subject to the same punishment, not because of the different identity, status and special. Principle of equality is not absolute equality, but relative equality, it refers to the same treatment of the same situation, different treatment of different situations. Therefore, from the perspective of justice, for a specific identity or the plot of a lighter or heavier punishment, as long as the concrete has the identity or plot are treated equally, must think does not violate the principle of the equality principle.

3The principle of suiting punishment to crime

The new criminal law5Article: "the degree of punishment shall be with crime, criminal responsibility and commitment to adapt."

On this principle, scholars have different names and understanding:

(1) some responsibility principle of criminal punishment on criminal liability, claims for any punishment must be based on the criminal responsibility as the premise, and the severity of punishment should be the extent of criminal responsibility and should be adapted to the no responsibility, no penalty.

(2Some people think, should from) suiting punishment and the unity of the penalty individualizing interpreted, known as the principle of balance between crime and punishment is more suitable. Because, the balance between crime and punishment, on the one hand refers to the accomplished crime (crime) social harm extent of adaptation; on the other hand refers to the possibility of the penalty and the unaccomplished crime, that is compatible with the degree of criminal responsibility. This principle is embodied in the spirit of the criminal justice, namely the crime and the punishment should be balanced, this equilibrium is not only the severity of the penalty and the objective social harm of equilibrium, but also the severity of the penalty and the criminal social danger in the subjective equilibrium. This is a dualistic equilibrium, the principle of balance between crime and punishment contains unified, subjective and objective behavior and the behavior of people, the unity of personal danger of social harmfulness and unified social content so rich, but is not a felony, misdemeanor penalty light punishment for such a simple formula can contain the.

   

    5, the unity of subjective and objective principle:

Position: subjectivism, objectivism criminal law, China is now the objectivism.

The unity of subjective and objective principle, refers to the crime not only requires the implementation of harm the social behavior in the objective and subjective tool requirements, criminal intent or negligence, but also subjective and objective content is consistent; the objective harm to determine the degree of criminal responsibility should not only consider the behavior, but also consider the subjective and personal sexual risk behavior of people. The causal relationship between crime and does not consider the subjective and objective consistent results.

    6, eclecticism

There are old school and new controversy in theory of criminal law, the penalty for both sides in the field of absolutism(Retribution theory)And relativism(Purpose theory of punishment)Battle, the new criminal law adopts the combination theory.

The old criminal law's wide range of statutory penalty, the applicable conditions of the death penalty is not specific, it is in order to meet the need of the individualization of penalty, to adapt to the need for crime prevention, embodies the purpose theory of punishment proposition. The new criminal law on the crime legal punishment amplitude is smaller, there have not the old criminal law had2Years or above5Years in prison and other smaller legal punishment, and the applicable conditions of the death penalty do more specific restrictions than the old criminal law, which embodies the retribution theory. The above provisions can be seen, the new criminal law the purpose theory of punishment and retribution.

The new criminal law5The provisions:"The degree of punishment,Should with crime criminal responsibility and commitment to adapt."

The hand to social harm and the crime itself to adapt, danger on the other hand with crime and the crime person fit. The former adapts is retribution requirements; after a suit is objective penalty requirement. Visible, the new criminal law5A positive and doctrine.