Justice: the primary value of criminal law to pursue

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Justice: the primary value pursuit of criminal law
Date: 2006-01-16 Views: 52 Author: Cai Daotong source: Journal of Huaiyin Teachers College Vol. seventeenth 1995 first (total sixty-sixth)
The criminal law should have different value pursuit, wherein, justice is primary. No justice of criminal law, criminal law and its existing foundation we risk being abandoned by the society. Criminal justice in addition to the crime and the punishment to crime and punishment, crime and punishment, fairness and other requirements (on this exposition, people have been discussed, the author thinks, these are the basic requirements of the criminal justice, because of this, this paper will no longer be discussed), it also depends on the the national penalty power and civil rights limits of rationality, depends on the accurate grasp of the criminal law on the social life of the criminal law of demand. Leave the two points, fairness is not the criminal law

The pursuit of value of criminal law can be defined as the following meanings: first, the criminal law should be self contained and containing what value. Second, the criminal law itself shall promote the formation and development of what value. Third, and not on the coordination between the criminal law value different contradictions and conflicts, the criminal law should be based on what criteria for value evaluation and choice cost value, namely the criminal law should take what value as the standard priority to trade-off the norms of criminal law or criminal law system, in order to obtain the maximum benefit of both criminal law and criminal law itself Science in the case of not fish and bear's paw. Any criminal law must be in a certain values as the foundation, "even the most rough, arrange the most hasty or play fast and loose relationship adjustment or behavior, some standards in its behind the total of all kinds of conflict with each other and mutually overlapped benefit evaluation." [1] scientific and perfect criminal law depends on the location to the correct value. In fact, the pursuit of value of criminal law is the objective demand of social existence and development in the criminal law and the reflection. We think, "justice" and "utilitarian" should become the two value aims of criminal law. Among them, "justice" should be the primary pursuit of value of criminal law.

A, leave the fairness of the criminal law, criminal law and its existing foundation is a risk society abandoned

Justice, fairness, justice, also known as. It has the meaning of integrity, fairness, avoid leaning to either side. The criminal law as a society to realize the last resort rule, as the arrangement of social life the last legal trump national will, inevitably relates to prohibited restrictions on civil rights, or deprived of its actual operation results. Therefore, the criminal law of citizen's influence can be said to wield absolute power, justice will inevitably become the primary value on the criminal law. Criminal law should become the symbol of justice. Leave the fairness of the criminal law, criminal law can only become the rulers of tyranny tools, foundation of the criminal law and its existence is in danger of being abandoned by the society. The any law, especially criminal prohibitions set up, not only contains the value of political certain evaluation, but also contains ethical must. As the basic desire of legislators and common to reflect the requirements, it will inevitably cause social member's subjective judgment on justice, a commonly accepted moral principles and the pursuit of the criminal law. The basic principle of criminal law and specific set of the system is always people on the concept of equity, justice beliefs are closely linked. Indeed, in any society, prohibit the provision of each power ruling class tried to prove that the criminal law establishment and set based social support which has a feature of social justice. They are always trying to be moral evaluation standard and their requirements as the value foundation of criminal law norms, and say it as all the members of the moral requirements of society, so that the will of the ruling class has characteristics of the will of the state in which the whole society will form. Therefore, general social justice idea of justice does not necessarily equate to confirm the ruling class about the fairness of the standard, the ruling class of justice is the same people's justice outlook the fierce conflict.

But, in every development stage of civilization, any ruling but also cannot ignore the basic standard of universal justice and non justice, justice and injustice. The criminal law shall be investigated for criminal responsibility by setting and way of ban, to prevent people from implementation of crime and criminal law protection and civil society to play rights protection function. So the criminal responsibility setting and held only maximally satisfy the common belief that social justice, is possible only by the people's respect and support. If the criminal law is generally considered unfair, will be the people despise, resist and contempt. People consciously or unconsciously by the scales of justice to measure the rationality of criminal law principles and norms, and according to the requirement of justice criminal satisfaction decided to ban on criminal law attitude. Of course, in the development of criminal history, set up the principles of criminal law and criminal law is not always follow the principles of justice, especially under authoritarian regimes, the ruling class always put the criminal law as a tool of the ruling class, intentionally bin malignant expansion as penalty, the actual demand in defiance of social life, will gain into the criminal law to regulate their own, explicitly or implicitly admitted between different class, different classes in the criminal law on the crime of inequality, unfair treatment of different subjects. But this does not mean that the criminal law can ignore people generally believe in the concept of fairness, because those in clear violation of the social life of unfair criminal law, freedom, equality and the people who claim the apparent lack of the most simple justice and humanitarian requirements, and not a scientific democratic criminal law, its social the control objective can not be realized, the social and political foundation of criminal law and its existence must be abandoned by the society. The human legal development and human development history has proved this point. in any society justice, people always view conditions of social material life and certain closely related, "in daily life, if we come into contact with the relation is very simple, so fair, not fair, justice, legal sense of the noun even applied to social phenomenon does not cause what big mistake." [2] and absolute abstract view of justice is not possible. "Justice has always been only existing economic relations in the conservative or in its revolution concept, sanctified manifestation." [3] but justice is justice lies in the provisions of its own with its quality, its basic requirements and Limited is the reason why it is called the fair grounds, the different time people may have idea of justice is different, but its basic connotation is impossible to change. "If people are the most intelligent that justice is a concept of meaningless, fantasy, unreasonable, so give up exploring the justice of law and justice, so humans have returned to dangerous barbarous state. In this state, the non rational will overwhelm rationality, dark forces may overcome prejudice humanism, overcome good and benevolent force." [4] in this case, provisions of the criminal law on the crime of a corresponding penalty, can not be with the common belief that fairness view coincide, this law will not be considered reasonable, criminal law can not be recognized and comply with the people, can only be the evil monks and negation even worse, lead to a more serious crime. And this kind of hatred and negation may system based in seedling and criminal law. Can say, justice is the core of criminal law value pursue

As the value of the criminal law, the criminal justice mainly refers to the criminal law legislative justice. The fairness of criminal law is mainly manifested in the total basic principles of criminal law, the system and the prohibition of reasonable norms. There is no legislative fairness, justice, the fair has become an empty promise. In this regard, as Marx said: "if that lawmakers have favoritism case can have a fair the judge, it was silly and unrealistic fantasy! Since laws are selfish advantage, so selfless verdict still have what meaning? The judge can not otherwise express legal egoistic, justice can only execute it unconditionally. In this case, justice is the form of judgments, but not its content, the content has been provided for by law." Justice of criminal law has its [5] quality requirements and regulations.

Justice depends on the rationality of criminal law in two, the national penalty power and civil rights boundaries

Any criminal law always take the national compelling force as the backing, to social interests on behalf of identity expression of the will of the ruling class, the behavior of the criminal prohibitions to domination of the most basic ordering requirements, through the negative evaluation and condemnation of the crime and make the MY show to the world, the national criminal law criminal responsibility way the dignity and justice, correction of distorted social relations and interests, the restoration of criminal damage to the social order. Countries from the scope of criminal law protection highly recognized social relations and the interests of the whole society. For the personal interest, social interest groups, countries with their representative identity, the interests of the destruction and violations identified as infringement of the interests of the whole nation's fundamentally, by setting and use the power of punishment, to achieve the most basic order orderly management of state ordered rule will. Therefore, the focus scope, penalty citizenship behavior rationality and legality of bounds cannot not criminal law concerned. In this connection, the fairness of criminal law is not the first not reasonable limits and national penalty right, must first depend on the national penalty power and Civil Rights Allocation Rationality degree. The relationship between these two solutions of the rationality of criminal law also shows its scientific and democratic level.

The criminal law as the final barrier to curb and combat crime, duty bound to allocate the benign operation to protect the social order and social interests of the fair and efficient, as the model boundaries and conduct of social members to design the most basic minimum requirements, to maximize the prevention crime, crime and crime control. This is the national basic means to realize the orderly society, is based on certain social material living conditions based on the country the inevitable demand of criminal law, therefore, some necessary punishment is necessary for the state and society. It is necessary for social protection of the criminal law. But the criminal law reflects the will of the state social protection should be moderate amount, not to sacrifice the citizen individual right, legal, or can tolerate the behavior, or should not be at the expense of criminal punishment. Because the criminal law is the will of the state of the strongest and most extreme expression, inherent qualities of which decides the criminal law has its own strong aggression and expansion. If you do not give punishment for a reasonable limit, if the exercise of right of state power of punishment to give necessary and sufficient attention, exercise criminal jurisdiction may be to deprive citizens of basic human rights of illegal or unreasonable weakened, at the cost of. Can say, no basic human rights necessary and sufficient protection and maintenance, the birth of modern democracy and science without criminal law. Therefore, limits of the criminal law must be clearly defined in the national penalty power of punishment, to exercise of the right to the necessary restrictions, to prevent the expansion of the state power of punishment, criminal law has "protect the rights and interests of criminal actors, to avoid the abuse of state power and the victims of the function" [6]. Therefore, the correct limit state punishment right and basic civil rights has become the primary symbol of criminal justice.

The penalty is by limiting or depriving the criminal's life, freedom and other rights of the criminal law to ensure its existence and social benign operation. Therefore, the application of penalty provisions and certain conditions must be necessary, appropriate. Because "the penalty is actually a double-edged, it through the damage law to protect law benefit." [7] "punishment to the crime person exceeds the limits of necessity is cruel, the penalty is not up to the limits of necessity is the unprotected public cruel, but also to have suffered waste." [8] from a certain sense say, history of the development of criminal law, is the arrangement and adjustment of the relationship between the penalty power and the history of civil rights

History and reality have proved that, the penalty of their own expansion and aggression, mankind is always the biggest threat in the application of criminal law in the face of violation punishment, the right of citizens rights not only has the possibility and reality. Justice of criminal law is expressed as the provisions of the criminal law basic principles of science and the concrete system to reduce the possibility and reality to a minimum.

In fact, an unrestricted or restricted ineffective punishment than an unrestricted risk behavior brings disaster to be much more serious. Because the latter is a kind of "isolated individuals" behavior, and the former is the country for support. In a position of absolute authority in the criminal classifiction and harm of the penalty. In this context, the citizens in this "isolated individuals" are often in a state of incapable of action. If we face criminal operation, it is not difficult to find, in the national criminal jurisdiction exercised protection and the rights of the citizens, citizens are in a weak position. As the defendant in criminal procedure is even more so, "in view of the defendant as the object of criminal judgment and enforcement action. That is the defendant compared to the general people need more subject to the protection of human rights." the [9] basic principle of modern legal system tells us, no special protection for the weak, exercise criminal jurisdiction on cross-border may, the fairness of criminal law is unthinkable. Special protection for the weak is the basic requirement of the principle of equality. "The principle of equality corresponding requirements: (a) and the specific environment appropriate to the specific way of speaking, all equal situation must be treated equally; (b) not everything in this same situation must not equal treatment; (c) is not equal to and less is equal to the corresponding relationship." keep is said: "the equality allows like horse racing and golf as the adverse conditions and favorable conditions for poor, in order to give the ability not equal competitors provide equal. But this to the adverse conditions for inferior advantageous conditions must be fair, in other words, must and competitors ability not equal the corresponding [10]. "According to the principle of equality, the basic principle of criminal law, the specific system must give citizens or individuals to provide special protection enough, it is possible that the national penalty power is exercised proper, reasonable, fair.

The protection of the weak, the criminal law must stipulate clear legal basis for the exercise of the right of punishment. Any law, not torture torture is the legal principle of destruction, but also on the civil rights violations. Since the area boundaries of countries have set behavior as the citizens, so any outside the boundaries of the behavior it should be seen as legitimate or is not illegal, at least should not enter into the field of criminal law. If the outside the law expressly forbidden by the state, and a ready to be recognized as the scope of the criminal and civil because step into this field to allow citizens to bear criminal responsibility, this not only to the a citizen is a kind of serious injustice, but also the countries to shirk their responsibilities just want to enjoy power does not fulfill the duty performance. The state is the duty, strict enforcement of laws, in the face of social life in cannot use legal adjustment behavior, to set, change, waste on the legal situation. Countries of law legislation, reform, waste before the emergence of the "crime" behavior must give a certain degree of tolerance, because this is the loopholes in the law and the formation of due to the country's own failure to effectively on the behavior of criminal law, the state should face and accept the results, even though it is sometimes unpleasant. "Any action, as long as the social harm, the criminal law can be banned. But the criminal law must have prior to be accurately defined, this point is critical." [11], Marx and Engels once profoundly pointed out: "the legislators have moral should be first identified: the most serious, the most harmful and most harmful things in the past, is not counted as crimes included in the field of crime. [12] "legislators wise to prevent crimes is to avoid being forced to punish crime, but he prevention method is not restricted the scope of rights, but to the right to determine the range of activities, so that to eliminate the negative aspects of each of the claims. If countries in this regard not merciful, rich and generous, so, in any case, lawmakers must shoulder the obligation to be one's unshirkable responsibility -- don't take that kind of environment caused by fault into crime, he should be the greatest humanitarian spirit make it all as social chaos to correct these mistakes, if the crime as harmful to society. Punishment, that is the most unfair." [13] also, if the legislative or judicial the law does not expressly prohibited acts as a crime to criminal punishment, which is one of the greatest injustice. Because the behavior of "criminal nature" of the cognizance right only exists in the countries in the party. "In fact, when one party does not free or in an unequal position, once you determine the rights and obligations of both parties, the agreement may be imposed on the weak square on 14] as Marx points out. So," the law is in the affirmative, clear, general specification, in the specification of free existence of universal, theory, does not depend on any properties of others. Law is the Bible of the people." [15] to do this, the criminal law should be excluded from the criminal law and so on, retroactivity, established the principle of legality, to ensure the basic human rights of citizens and the criminal accused person's legitimate rights and interests, to limit the national power of punishment expansion exercise. The principle of legality is the correct solution to a basic principle of national penalty power and citizen right boundary rationality must be followed. It can be said that, the principle of legality is an embodiment of criminal law and guarantee fairness, justice is the value basis of the criminal law is the value of the foundation of legal principle of crime and punishment. Criminal law should be through a series of basic principles of criminal law setting and arrangement, reasonable limit for the penalty power and civil rights, guarantee the fairness of criminal law.

Just three of criminal law, criminal law also depends on the accurate degree of understanding on the social life of the criminal law of demand

As the illegal behavior is usually not for the transfer of economy caused by the legislators will. [16] criminal legislation must also is determined by certain social material living conditions. On this point, as early as in "the draft law on divorce." in one article, Marx put forward a very important idea, legislation should be based on objective reality basis. Legislation must be in the nature of things as the premise, on the inevitability of things as the basis. "Legislators should consider yourself a natural scientist. He is not in the manufacture of the law, not the law, but only in a legal representation, he put the internal law spirit relations performance in the current legal consciousness. If a legislator with their own imagination to nature for things, then we should blame him extremely headstrong. Similarly, as to the nature of any private things to violate act, lawmakers also have a right to this situation as extremely headstrong. [17] lawmakers should take the essence of the objective things as their object of cognition, the social life is not to rely on their own will and the existence of things, thus the objective relationship in conscious law. The essence of legislators can never replace things with your imaginary, but can not arbitrarily castration essence of object recognition, to cut the objective social life with their own subjective bias or personal gain. The actual objective demand of social life on the criminal law has become the material premise of existence of criminal law, "both political legislation and civil legislation, just show and record economic relations requirements. The objective of the social material living conditions of [18] determines the substance of the law, constitute the basis for the existence of criminal law. In this connection, the right of criminal law reflects the objective demand of social life and the degree of accuracy is also an important yardstick of criminal justice and impartiality degree.

Between the social objective conditions of material life and the criminal law is not a direct determined by the relationship. Without this intermediary state will, the criminal law needs the objective material conditions of life society is impossible to form the legal performance. Marx once pointed out: the law as to form the state will show the will of the ruling class, in the final analysis, "this will content, is your class material life conditions to decide." If the [19] argument is a direct claim, the social and material conditions of life so, the direct claim to the will of the ruling class as an intermediary, the state will form, can rise to the law. The criminal law also so, reflect the criminal law of the social material living conditions is indirect. This reflects the same state power as an intermediary, the ruling class will rise as the norm of criminal law. How the quality of the rise and the scientific process, effect and the extent depends on the criminal law reflects the social and material conditions of life, depending on the level of understanding of the ruling class of the objective inevitability, depends on the motivation of legislation, the legislative purpose of ruling class fairness and science degree.

If a society only considers the law as a tool of social control and social management, law became the only tool, then, the law may be wrongly defined as the only product of the will of the state of the ruling class, subsidiary material law will become the power of the state. This method could completely depart from the social foundation of the existence of law, arbitrarily become the ruling class use of the tool, or even a others "self", the law requires not only reflect the social and material conditions of life, but also deviate from the overall interests of the ruling class. So in this case law setting is a "will", the subjective bias of minority and private interests into legal norms, in order to maintain a vested interest and safeguard the interests of the legitimate existence. Criminal law is no exception. If the criminal law can not protect and maintain the interests of the majority, it is the maintenance of a certain class or a certain class of vested interest, setting statutory obligations more to other members of the society, or for different people in different penalty "treatment", in determining the crime and non crime, the legal provisions in the crime and punishment, solely on the basis of different identities and give different "road", the lack of basic equity in crime and punishment, crime and crime, penalty and punishment, so the legislation of criminal law that there is no fair basis, people have Reasonable enough reason to doubt or deny the lawmaker's motivation and purpose of legislation purity as well as the social system itself.

The fairness of criminal law is not affected by the legislators do not need for social life objective law awareness and the level of understanding. If legislators by various constraints, can not understand or can not correctly grasp the main contradiction of society, so the criminal law can not reflect the actual needs, social life, criminal legislation will deviate from the center of the social life and the subject, also will appear to the criminal law to regulate the field is the specification of vacuum and loopholes, and criminal law should not be this result to regulate or no need to focus on the norms of the criminal law has been the concern and attention. Due to the understanding of the factors of criminal legislation of congenital defects, the criminal law, justice greatly discount. Therefore, legislators must correctly understand and grasp the main contradiction of society, legal requirements on certain social material living conditions of people and the Criminal Law Center, correctly define the nature of criminal science, recognized standard to determine the social harmfulness and with changes in social political economic and cultural life and social harmfulness to dynamic investigation and analysis of the necessary, to put them in the certain social history condition, see it to the civilization and progress of the society, the freedom and rights of the people influence. On this basis, the evaluation give positive or negative criminal law, criminal law to set a fair and objective. Without the correct view of crime establishment, not to grasp the behavior of social harmfulness, the fairness of criminal law is impossible. Develop and maintain this kind of criminal law is a kind of injustice, such criminal law must be modified or completely reconstruction. Because "regardless of social development in the new needs and save the old law, in essence is not other, just use highfalutin sentences for cover, safeguarding private interests of those who do not adapt with the times, against mature common interests,...... The results will lead to the abuse of state power to force the interests of the majority to minority interests." [20] is also in this sense, the timely amendment to the criminal law according to the social development, is the need of society, and also the requirement of criminal justice.

Note: ① Pound: "social control through law legal task", the commercial press 1984 edition, page fifty-fifth

In the "Marx thought" the complete works of Gus, volume eighteenth, 310th pages, 310th pages.

Bodenheimer: "jurisprudence, philosophy and method of" Huaxia press, 1987 edition, 204th 205 pages.

The [12][13][15][17]{Marx Engels}, volume first, pp. 178149148,71183.

The Nishihara Haruo foundation and philosophy: "criminal law" the Sanlian bookstore, 1991 edition, page thirty-third.

The turn from yellow wind: "Penalty: social defense" double-edged "load", "comparative study", 1987 fourth

The Goldin: "philosophy of law" Sanlian bookstore, 1987 edition, page 151st.

Cai Dunming: "the modern criminal law and criminal legislation thoughts", Hanlin press 1977 edition, page 100th.

Mir Faith: "the philosophy of human rights", the Oriental Press 1991 edition, page ninety-second.

[11][14] Peter Stan: "law of value" in western society, Chinese People's Public Security University press, 1989, pp. 177,33

[16] see "Marx complete works of Engels", volume thirteenth, 552nd pages.

[18][19] "Marx and Gus complete works", fourth volume, 121st page 122485.

[20] "Marx and Gus complete works", volume sixth, 292nd pages.

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