China's "criminal law" the fifth stipulation: "the degree of punishment shall be with crime, criminal responsibility and commitment to adapt." That is, the principle of suiting punishment principle or the balance of crime. The balance of crime principle is a basic principle of the criminal defendant sentencing. The balance between crime and punishment is one of the guiding principles of the sentencing judge, that is to say, the judge in sentencing to pursue the rationality of punishment. Judicial rationality is a socialist harmonious society, higher demands for justice.

The origin, principle of balance between crime and punishment

In the primitive society and slave society period, only from the external behavior of human behavior, to evaluate the damage, further decided on penalties for the behavior, namely "revenge". Engels in the "family, private ownership and state of origin" in one book, describing the Iroquois primitive clan system said: if the phratry, inter tribal murders or wounding incident, take the "sin" and "revenge" two ways of treatment. The so-called sin is refers to the perpetrator clan to offset the committed crime with "an apology and a generous manner; the so-called" revenge "refers to the clan to specify one or more Avengers, their task is to find the perpetrators, kill him or kill", blood for blood, life for life. Also pointed out: "blood revenge as just a little extreme, means; we today's death, but the Revenge of the form of civilization.^[1]Homomorphism revenge thoughts are recognized by law confirmation in slave society. For example: the first dynasty of Babylon sixth generation of King Hammurabi era compilation "code of Hammurabi" the ninety-sixth stipulation: if a man put out the eye of another man, his eyes should be dug out. Rule ninety-seventh: if he break another man's bone, will break his bones. Rule 200th: if a person down his teeth, his teeth should be the same destroyed. Entered the slave society and feudal society a king (Huang Di) is the country's legal thought is born, the king and the judge only by his momentary belief of law. The principle of balance between crime and punishment has not considered.

With the development of productive forces, the social economy development, human values are constantly changing. The principle of suiting punishment to crime thought originated from the bourgeois enlightenment, is a product of human rights, people's sovereignty thought development. Montesquieu puts it: "the punishment due to different degrees, according to the size of certain crime, punishment."^[2]The famous Italy criminal law experts Beccaria pointed out: "the crime threat to public interests more prompt people to commit crimes, the power of the stronger, to stop people the means of crime should be more powerful. This requires the penalty and the crime of."^[3]With the victory of the bourgeois revolution, the principle of suiting punishment to crime by bourgeois rulers established as a basic principle of law. For example, France in 1789 "Declaration of human rights" eighth stipulation: the law should establish strict obviously, must penalty.

The connotation of the two, principle of balance between crime and punishment

The principle of suiting punishment to crime is one of the very strong principles of criminal law practice. The balance of crime principle, also called the punishment fit the original responsibility or proportionate punishment to crimes, refers to the criminal is sentenced to punish their sin be quite, namely the penalty according to the specific requirements; it includes a felony, misdemeanor penalty light punishment, innocent three aspects without penalty.

China's "criminal law" the fifth stipulation: "the degree of punishment shall be with crime, criminal responsibility and commitment to adapt." That is, the principle of suiting punishment principle or the balance of crime. The balance of crime principle is a basic principle of the criminal defendant sentencing.

The balance of crime principles include the following several aspects of the connotation of:

(1) the penalty and the criminal nature of considerable

Beccaria in "crime and criminal law" pointed out: "the penalty should conform to the nature of the crime, this principle surprisingly farther close an important link between crime and penalty, this similarity is particularly beneficial for people to repay the motive for the crime and penalty are compared, when the attractive violated laws pursue a goal the performance change, similar to the human mind, and put it into the opposite goal."^[4]As can be seen, Beccaria argued the penalty and the crime nature quite.

The nature of the crime is simply defined as a criminal offense of qualitative behavior of criminals, that is to say what the crime to the criminal. As can be seen, the nature of the crime even if conviction plots, but also of sentencing. The different nature of the crime, the different social harmfulness, cause the social impact is not the same as. For example, the crime of intentional homicide and robbery, property crime of intentional homicide crime than to nature. China's legislature in the criminal legislation is according to the nature of the crime and the circumstances of the crime to decide the punishment degree. The judicial authorities in the judgment against the defendant should first consider the nature of the crime, and the size of social harmfulness. Further, according to the nature of the crime, social harm and criminal sentencing plot made of criminals. Therefore, the judge in a ruling that attention should be paid to the nature of the crime to sentence, not a felony qingpan, nor law spirit.

(2) the penalty and the criminal behavior of social harmfulness is quite

From the "criminal law" stipulates that the fifth can be seen, the penalty and the crime committed by an offender is. The crime committed by an offender refers to the implementation of the criminal offence, criminal behavior. Social harmfulness is one of the basic characteristics of crime. Social harm is refers to the legal interest of criminal law protection to the harm caused by the crime. The interests of the state and the people is the object of criminal violations. The object violated by criminal acts harmful to society is different in different. In sentencing the offender, the social harmfulness should be considered a crime, harm is big, heavy punishment; social harmfulness of small, light punishment. For example, first offenders and recidivism hazard to the society is not the same, so the provisions of the criminal law shall be given a heavier punishment for recidivist. In the specific crime can be very evident. Give a simple example, such as the crime of theft. Two people the same amount of theft, other circumstances are the same, just a first offender, is a recidivist; in the same crime, subjective vicious general recidivism than first-time subjective malignancy. At this point in the criminal sentencing punishment of the former to the latter light sentencing sentencing to. The implementation of China's criminal policy of combining education with punishment. If a criminal sentencing as long as we can achieve the purpose of education and punishment can be. So, to be subjective and social harmfulness considering the criminals in the measurement of penalty.

(3) the penalty to adapt with the criminal responsibility

Criminal responsibility, is the basis of national criminal law, the legal liability in accordance with the provisions of the criminal law of the crime, namely crime because of the implementation of crime should be negative evaluation and judicial organs of the state in accordance with the criminal law bear for his crime and I made and condemned.^[5]Criminal responsibility of crime determines criminal who bear. No responsibility is not punishment, criminal responsibility is the bridge and link between the relationship between crime and punishment. The judicial organs shall first determine the criminal responsibility borne in punishing the crime, according to criminal responsibility, punishment.

Three, the principle embodied in legislation of China

Principle of balance between crime and punishment requirements are unified in our criminal law of our country criminal law, "" the punishment balanced principle to determine the general; the different penalty in the general part of criminal law; in the specific provisions of criminal part for different circumstances of the crime are different degrees of punishment. Our country these in the criminal law provisions, fully embody the principle of balance between crime and punishment thought. Including embodied in the general principles of criminal law and criminal law part in general terms from the.

(a) embody the principle of balance between crime and punishment in the general principles of criminal law

The general is the basis principle of crime, criminal responsibility and general principles of regulations, rules and plays a commanding role to the whole system of criminal law. The principle of suiting punishment to crime as one of the basic principles of criminal law, manifested in our country in general provisions of criminal law have the following points:

1, to determine the principle of balance between crime and punishment in general provisions of criminal law in China

China's "criminal law" the fifth stipulation: "the degree of punishment shall be with crime, criminal responsibility and commitment to adapt." This is China's criminal law on the principle of balance between crime and punishment is the most direct regulation, criminal legislation, justice is our principle. Whether in the criminal's each part, and in each stage of criminal justice, should follow this principle.

2, the balance of crime principles embodied in our country's penalty

The provisions of the criminal law of our country penalty in the third chapter, including the kinds of punishment and penalty provisions. Our punishments are divided into principal and supplementary punishments two categories. The principal punishments including control, detention, imprisonment, life imprisonment and the death penalty; additional penalties include fines, deprivation of political rights and confiscated property. This setting different punishments to the judicial organ staff according to the different nature of the crime, crime and social harm of punishment on crime.

3, the balance of crime principles embodied in other aspects of the general principles of criminal law

In the general principles of criminal law and other aspects mainly in the incomplete crime patterns, in the main accomplice in the crime, excessive defense, hedge is improper and the back aging in five aspects.

(1) the principle of balance between crime and unfinished crime in the form of

The incomplete crime patterns in the crime process due to some reason to stop down the state, namely, the criminal behavior for some reason can not continue to move forward. The incomplete crime patterns in our country's criminal law includes three forms of crime in preparation, discontinuance of crime and attempted crime.

1 "criminal law" twenty-second stipulates: "in order to crime, preparation tools, manufacturing conditions, is the preparation for a crime. One who prepares for a crime, can be accomplished crime shall lighter, mitigated punishment or be exempted from punishment." According to the constitutive elements of the crime, in the preparation stage, a deliberate crime subjective, objective behavior objectively for the smooth realization of crime to remove obstacles, which is harmful to the society, should bear criminal responsibility. However, this is not the protection of criminal law caused substantial damage, but the protection of criminal law has the threat, so the harm degree low crime accomplishment. Therefore, the provisions on the crime may be given a lighter, mitigated punishment or be exempted from punishment. This kind of punishment can contain sufficient to achieve the purpose of crime.

2 "criminal law" the twenty-third stipulation: "has already begun to crime, due to reasons other than the criminals will not succeed, is attempted crime. For the offense, can be accomplished crime shall be given a lighter or mitigated punishment." This requirement can be seen, attempted crime is already started, but due to external factors and the unfinished crime state. The social harmfulness than accomplished under the condition of social harmfulness. The provisions of the second paragraph of twenty-third only, and no provisions should be, this is because some crime although not complete, but at the time of sentencing should consider the circumstances of the crime and the subjective malignancy. If the nature of the crime and crime serious, subjective malignant is deep, the consequence is very serious, does not need to be given a lighter or mitigated.

3 "criminal law" the twenty-fourth stipulation: "in the criminal process, gave up the crime or automatically and effectively prevent the result of crime, discontinuation of a crime refers to. The discontinuance of crime, no damage is caused, be exempted from punishment; damage is caused, be given a mitigated punishment." This provision is using "shall" two words, so, if the criminal behavior caused no damage will be exempted from punishment. Although caused some damages, but also be given a mitigated punishment. Provisions of this fully embodies the principle of balance between crime and punishment.

(2) reflects the balance between crime and punishment in a joint crime

A joint crime is an intentional crime committed by two or more persons jointly. "Criminal law" the twenty-sixth stipulation: "the organization, leads a criminal group in carrying out criminal activities or play a principal role in a joint crime, are the main culprits. More than three people as the common crime is fixedly consisted of organized crime, criminal groups. Ringleader who organizes, leads a criminal group, punishment according to all the crimes committed by the group. The principal otherwise stipulated in the third paragraph, shall participate in or organize, command of all criminal punishment." Rule twenty-seventh: "plays a secondary or auxiliary role in a joint crime, is an accomplice. The accessory, shall be given a lighter, mitigated punishment or be exempted from punishment." Rule twenty-eighth: "who is coerced to participate in a crime shall, according to the circumstances of his crime, a mitigated punishment or be exempted from punishment." From the above provisions, the subject of crime in the crime play different roles, penalties are also different. Such regulations, criminals executed situation is good, can guarantee the judicial fairness and justice, to promote social harmony.

(3) the principle of balance between crime and reflected off when not in defense of hedge

"Criminal law" the twentieth paragraph second: "justifiable defence obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment." Twenty-first the provisions of the second paragraph: "the emergency exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment." Excessive defense and hedging improper behavior and general criminal behavior is different, so the responsibility is not the same, according to the punishment balanced principle to distinguish.

(4) reflect the balance principle in the back of the prescription of

Aging refers to the legal provisions of the crime behavior in over a certain period of time will not be held system. China's "criminal law" the eighty-seventh stipulation: crime through the following period no longer prosecution: (a) the maximum prescribed punishment is dissatisfied with five years in prison, after five years; (two) the statutory maximum sentence of five years and less than ten years in prison, after ten years; (three) the most high statutory punishment for more than ten years, after fifteen years; (four) the maximum prescribed punishment is life imprisonment or death, after twenty years. If that must be prosecuted after twenty years, the matter shall be submitted to the approval of the Supreme People's procuratorate. Back of aging and legal punishment in China associated with aging, traces the legal punishment short is relatively short, and vice versa. While the social harmfulness of statutory punishment and the nature of the crime, the circumstances of crime and the crime decision. Therefore, our country back aging also embodies the principle of balance.

4, the principle of balance between crime embodies in the specific provisions of the criminal law

The criminal law is the crime specific rules for determining specific penalty system. Criminal law provides for ten types of crime. Ten kinds of crime in criminal law of the order is arranged according to the nature of the crime and the social hazardous size. The overall sequence accords with the principle of balance between crime and punishment.

From the specific charges, each one counts under the circumstances of the crime, the punishment for the corresponding provisions. For example: "criminal law" the 266th stipulation: the fraud of public or private property, large amount of, a fixed-term imprisonment less than three years, criminal detention or control, or be fined; if the amount involved is huge or other serious circumstances, three to ten years in prison, and shall also be fined; if the amount involved is especially huge or other if the circumstances are especially serious, department for more than ten years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property. The provisions of this act, in accordance with the provisions. Can clearly see the different circumstances of the crime, a different sentence. The provisions in the specific provisions of criminal law in everywhere. This fully embodies the principle of balance between crime and punishment provisions of the criminal law of china.

Deficiency and perfection of principle four, balance of crime in the criminal law of our country

(a) under the principle of balance between crime in criminal law of our country

Pursuing the principle of balance between crime and punishment on the value tendency is fair, justice. The basic requirements of balance between crime and punishment and connotation has been described in the above. In order to achieve the balance between crime and punishment for us not only to ensure the proper procedures, but also to ensure that appropriate sentencing. Although there are provisions for many offences relating to equilibrium principle in the criminal law in our country, but there are also many problems. Shortcomings mainly defects in criminal sentencing.

Look at China's criminal law, it is easy to find that every crime under the criminal penalty is uncertain. For example: "criminal law" the 232nd stipulation: the murderer, sentenced to death, life imprisonment, or more than ten years; if the circumstances are relatively minor, three to ten years in prison. Only intentional homicide crime, in our criminal law are given the death penalty, life imprisonment, or for more than ten years in prison and three kinds of punishment, and at the same time. If the circumstances are relatively minor, three to ten years in prison. But not what kind of circumstances stipulated in the criminal law belongs to the circumstances are relatively minor, and should belong to the circumstances are relatively minor, provided a penalty rate. In China's criminal law has the massive. However, our criminal legislation does not give a measure of. And, the judge convicted sentencing process of criminals is not open to the public. If the counsel for the defendant in court is innocent, then the defence in the sentencing of the defendant's may be zero, so virtually is deprived of the right to defense of the accused.

(two) perfecting the principle of balance between crime and punishment recommendations

"The judge in sentencing is their own awareness of the specific causes of the subjective activity. In this activity, the value orientation of sentencing, the judge to sentence and punishment has decisive effect. Thus, the sentencing judge accurately is the precondition to establish a correct view of sentencing. Harmony is such a view of sentencing."^[6]In the implementation process of the criminal law in the protection of the principle of suiting punishment to crime can always be implemented in all respects, help to build a harmonious society. The author believes that, in order to achieve the penalty according to the crime, is more harmonious, harmonious society, to do the following improvement:

Aiming at the discretion of judges in China is too big, our country should be clear on a few points in legislation:

1, a clear and uniform sentencing standards

In our country, the criminal law has given the sentencing range, but a lot of the penalty range is too large, and there is no uniform standard, the judge ruling, relying on accumulation during the trial experience to estimate the receivable punishment. A clear and agreed to the sentencing standards help to achieve the same punishment with the crime, to reduce the influence of subjective judge on sentencing.

2, the norms of criminal law in general terms

Criminal law provides for the circumstances of the crime is general, so, the same crime, the circumstances of the crime, because of different regions, different trial organization, the sentence is different. Provisions of general criminal law in many. For example, the crime of theft. Different regions of the economic situation is different, the sentence is not the same standard. This will cause, also is the theft of 1000 yuan, the trial in different area, will come to a different verdict.

3, increase the term limit, reduce the sentence span

At the same time increase the sentence term reduction applies to life imprisonment. China's criminal law provisions of the circumstances of the crime in a prison sentence is the largest span of up to seven years. In the legislation to clear each span under the applicable circumstances of the crime, in order to reduce the same crime, the same plot. At the same time span.

Note: [1] "Marx selected works of Engels" (fourth volumes) [M]. Beijing: People's publishing house, 1972 83 edition, ninety-second pages.

[2][Montesquieu, the spirit of the laws (first), translated by Zhang Yan, the Commercial Press, 1962, page eighty-fifth.

[3][] Beccaria, on crime and punishment [M], Chinese encyclopedia press, 1993, page sixty-fifth.

[4][] Beccaria, on crime and punishment, translated by Huang Feng, 1993, page fifty-seventh.

[5]http://baike.baidu.com/view/27314.htm, criminal responsibility

[6] Zhong Peilin, thinking to improve the China sentencing, social aspect (new theory version), in 2010 the total volume twenty-fifth, seventy-ninth pages.