European Criminal Law History

   (a) the origin of the criminal law

   Modern criminal law, is the country in order to maintain law and order, the public power to criminals sentenced to public punishment, the nature of national, public law. The public nature of the criminal law, in European history is not innate, but from the experience of the private law to public law of evolution. At first, the criminal law to personal feelings of revenge and primitive religious feeling based, nature is tribal, law. That is, the origin of criminal law, in the primitive society against the tribal customs people imposed sanctions regime. If the offender in the clan, the patriarch of strong sanctions, from the tribe of infringement, the tribal revenge struggle, which means "the consanguinity revenge".

   Among the tribes in a tribal fight, before the total destruction is difficult to stop, so, with the progress of the times, the gradual emergence of the limiting the tendency, "revenge" (Talio), "on", "sanctuary", "ransom" (compensation) system have to admit. Then, gradually formed the basis for the national criminal law.

   Interestingly, China criminal law in the very early on showed strong national and public law, almost no original records about the private law of criminal law. In "Shang Shu Shun Dian", Shun ascended the throne, he immediately started to catch "serious cases", the punishment of the criminals several commit the most heinous crimes, and "four offenses ham served the world", is the China about criminal law (penalty) is the earliest data exists. China and "punishment from military", also shows that the criminal law originated from the state, with the nature of public law. Just about revenge whether legalization debate, people can see the early a little trace remains of private law.

   (two) the ancient

   Greece and Rome criminal law still has a strong religious color, in the early days of for example, revenge Greek blood is carried out to comfort the souls of the dead. In early Rome, the victim and the public prosecution, as a penalty for only by the property compensation of the so-called "private crime" is universal, by state organs by the public punishment "public crime" is only recognized in the conspiracy and murder case of exception of Rome citizens.

   However, in the Republic era, the crime scope gradually expanded, including arson, perjury, and then, at the time of the emperors, to strengthen the power of the state as the background, including theft, burglary, fraud, abortion, the abandoned babies, "particular crime" concept has gradually been recognized. So, the criminal law of Rome in part from the private law to public law criminal law. And the criminal responsibility, then, is in principle even criminal incidental also acts as an object of "the responsibility". An important source of law in Rome early, there are twelve tables around 450 BC, "".

   On the theory of criminal law, at the time of the philosophers, for example, Protagoras (Protagoras) and Seneca (Seneca) has been advocated relativism or objective punishment germination properties, and Aristotle (Aristoteles) is advocated the concept of retribution based theory of punishment.

   The Germanic peoples of the criminal law, in the Germanic era (AD 500 years ago) is still customary law, nature has obvious law of criminal law. At that time, tribal forces strong, within the clan chiefs, mandatory penalty effectively maintained, and sometimes also the criminal out of the tribe (peace loss, Friedlosigkeit). For from the alien invasion, tribespeople kinship revenge is considered the rights and obligations, but later changed to the sin of victim compensation, at the same time will part as and Au (Friedensgeld) submitted by public authorities. Public punishment (penalty) only in time of war crimes and crimes against religious implemented a major of public interest to admit. And, the criminal responsibility is the objective result responsibility.

   (three) in the Middle Ages

   Frank era (A.D. 500 to 900 years) of the Germanic tribes, the Frankish Kingdom promoted the unity of nature of the criminal law, also gradually become a national, public law. That is, the revenge is limited in scope, receive atonement money become victim's duty, peace fittings crime to the state to pay a penalty system of meaning, then, the death penalty has been widely used in body. As the code, a "Sally code" and "ripuarian code" etc.. However, due to the collapse of the Frankish Kingdom, the Germanic law and the customary law status back past, Knight private bucket overflow. By thirteenth Century, all nations princes of the power to strengthen, the criminal law before gradually returning to the nature of public law. In thirteenth Century the Germanic law books, with "Isaacson", "Dirksen" Der Spiegel, "the mirror" etc.. At that time, crime is divided into by the physical punishment and sentenced to felony misdemeanor skin of punishment, but is also recognized the implementation of deliberate crime and negligence of crime. In this era, in order to replace the fine punishment in the past, the public punishment as severe physical punishment.

   Rome law and canon law, by the University of Italy, especially the Bologna University as the center, from about 1100 to about 1250 the glossator, and around 1250 to late glossator around 1450, the inheritance and development of. Especially the latter glossator, elements of Rome law and canon law and Germanic law combined, can be transformed into regulation of Germanic law of life, soon, will form the basis for common inherited by the Germanic nationality.

   In the UK, the early medieval law and Germanic ancient law, fails to distinguish between public punishment and lynching penalty, right in the face of life, liberty, property damage, on the implementation of inter tribal revenge. However, with the strengthening of national power, in addition to the victim and belongs to tribal compensation (B Qi), also established to the king and other public authority to pay a fine (wITe) system, the amount of increase. After the Norman conquest, the king's power to strengthen, quantity of crime can only be sentenced to public punishment surge, including from the accidental and non justifiable homicide, injury, rape, to imprisonment, robbery, arson and other. The penalty power common law principles as a customary law as the foundation, but also makes the individual penalty statute exception. The more famous the legislation is limited "high treason" range "treason law" in 1351. The famous scholar Burak Don (Bracton) launched its doctrine from glossator position, bring the influence law of Rome to British law.

   (four) in the

   In early modern Europe, due to the establishment of the nation state, public punishment the unprecedented developed, but also led to the penalty and arbitrary discomfort, severe social program.

   In this era, the German Code of 1507 "criminal law of Bamberg" in 1532, Carle V of "criminal law", namely "the criminal code". "The criminal code", through the medieval Italy law results, followed by Rome, Germany is the earliest, and before the later 1871 German penal code setting only applies to the entire German criminal code. The contents of most occupied by criminal procedure, but in 104th to 180th of the criminal law, in addition to provisions of attempted crime, the justifiable defense, liability, negligence, general, also provides a variety of crime and punishment. The overall view is very cruel, for example, in the death penalty have drowned, hanged, beheaded, Julie, buried alive, string thorn, stake, in addition, as physical punishment, a punishment, punishment exenteration ear cut, cut, cut the tongue punishment hand punishment, punishment, punishment apodization mark.

   Gallo Clarina is the criminal code of the nations law supplement, amendment was in use, resulting in the formation of a German general criminal law "(gemeines deutsches Strafrecht). As a scholar, Carpzov founder experience of criminal law, the theory of control (Benedict Carpzov) later German criminal law students for more than a century.

   In France, there is no single code as in the case of Germany, which the criminal law since sixteenth Century and by many stultify oneself king command. Before the French Revolution, the crime according to the identity by unequal treatment, and arbitrary, the state has not been changed.

   Enter after eighteenth Century, the continental criminal law is still in "the criminal code" framework, within, to the century, was established in 1751 criminal code of 1768 "," the Austria "Tracey" new criminal code of federal law.

   In the UK, the Tudor dynasty promoted the centralization, the attention of the state also involves the crime suppression. In the time of Henry VIII, developed a variety of criminal laws and regulations. The penalty and the continental countries, severe and cruel criminal was sentenced to death, the majority, but the monk has exonerated privilege. Criminal law became the object of comprehensive narrative, Kirk (Sir Edward Coke) contains the common law and statute law works.

   (five) modern

   Enlightenment thought has a great influence on the criminal legislation, the Prussian general state of enlightenment law formulated with Joseph S's 1787 "criminal law of Austria" and Frederick the great in 1794 based on. Three meetings in 1789 France convened, request the humanity, prohibit the judge's discretion, each class penalty equal, the abolition of religious and moral crime, the abolition of torture, public trial, petition, soon the third grade, third grade into an independent national assembly, issued a "human rights the Declaration", the declaration of the eighth penalty moderation and the legal principle of crime and punishment. After the revolution of the French penal code more thoroughly implement the enlightenment thought. In 1791, according to liberalism, limits the discretion of judges, the reduction should be sentenced to death, the abolition of imprisonment and other serious punishment, criminal law making very progress of color, but its content is too extreme, finally and revolution together destroyed. In 1810, the Napoleon code, is an old French penal code. The code has been criticized as "to intimidate the as a means of social defense", in the severe punishment, tend to have a bit of a reactionary, on the other hand, claimed the legal principle of crime and punishment, the free punishment as the principle, the concept of moral responsibility. On the whole, in 1810 the French penal code is the concrete expansion of the enlightenment representative penal code, in the nineteenth Century, is a model of national criminal legislation.

   (six) modern

   The modern school that emphasizes the importance of taking crime prevention measures according to the dangerous criminal character, have a great impact on modern criminal legislation. It is compared with the traditional criminal law, will risk character into the criminal law in the claims can be specifically expansion. In short, in the crime and penalty measurement circumstances, to consider not only from the outside of know objective crime and results, but also should consider the actor's subjective personality.

   On the other hand, from the point of view of crime prevention, and put forward the specific even impossible to ethical debate criminals, to social security, should also take compulsory measures for certain, not punished mental disorder offender, the court in order to defend the social security, the risk on the basis of the security branch on the measures, also is the security punishment system establishment. Especially Switzerland's Karl Stooss (Carl Stooss) according to this view, in Switzerland in the first draft into a comprehensive security measures, this is the first time in the world.

   In Germany, the 1871 German penal code to absolute retribution theory as the foundation, with the rise of modern school, active criminal law reform movement, from the early twentieth Century to the Nazi criminal, repeatedly announced the adoption of modern school advocates the criminal law amendment draft. In November 24, 1933, based on the "dangerous crime often learning and security improve punishment law" was the criminal law revision, the aggravated punishment dangerous criminals often used at the same time, creating a disciplinary system security.

   Subsequently, in the countries of Western Europe, widely carried out to change the educational idea, improvement in according to the behavior character of juvenile crime legislation, special treatment method has been generalized. The twentieth Century criminal legislation, on the whole is take the behaviorism theory of criminal law of the classical school for the tone, but also appeared a tendency to adopt modern school behavior point of view.

   In the modern two old school dispute, the birth of the two kind of special criminal law. One is the criminal law of the Soviet Union at the beginning of school, there is a Nazi criminal law. According to the classical proposition of the Marx doctrine, the causes of crime is capitalism in the harsh environment, therefore, in the Communist society, crime will destroy. If the crime, it is because of personal reasons, therefore, as a crime, is only for these improvement measures. This conclusion with the modern school's opinion, therefore, known as "Ferri draft" of the 1921 "Italy criminal law draft" became the Soviet Union criminal law (1926) model.

   Criminal law of the Soviet Union at the early stage of learning, from the group or collective point of denial of the principle of legality, harmful to the socialist social behavior is crime, the crime is not punished but giving social defence disposition. However, the subjectivism criminal law based on the negation of collectivism, because of the risk of human rights violations by the criminal law in 1926, was finally abolished. So, the criminal law of 1960 by two yuan punishment and sanctions, expressly provides for the legal principle of crime and punishment.

   The Nazi criminal law from the perspective of collective position, in a bad meaning, and specific order against the peoples of the bad personality to fight for the task. According to this view, and the meaning of personality is the driving force of national socialism, from the "national visual", criminals who have bad meaning, forming a rebellious personality, should be rewarded. The criminal law is the meaning of criminal law, the criminal law act of people, therefore, to deny the legal principle of crime and punishment, the penalty must be retribution, must be a sin. This conclusion is similar to the absolute retribution, but in essence and early Soviet criminal law is very similar. In the nature of the relationship of state power and the theory of criminal law, criminal law and criminal law of Soviet Union early Nazi left many lessons. After the war, West German Basic Law restored the legal principle of crime and punishment, can be said to be behoove.

   The creation of security measures on the prevention of crime is often used in detention and correctional training for content in 1948. In American, considering risk, at the same time, based on the penalty monism indefinite penalty system has been widespread, origin America Indefinite Penalty, is 1869 Michigan formulation on prostitution women sentenced to 3 years following the indeterminate state law, therefore, the criminal law and the new old factions opposing American without a direct relationship, only in the criminal law in the special prevention considerations.

   But the French penal code and the penal code provisions of Japan did not consider the special prevention of penalty and penalty, do not take two yuan doctrine and Indefinite Penalty points. So, the old and the new two compromise in a variety of forms, in addition to the early Soviet and Nazi criminal law, from early twentieth Century until after the Second World War, with the liberal rule of law thought as the keynote, adapt to the development of new thoughts of criminal policy, can be said to be the mainstream of criminal legislation.

   After the Second World War, the emergence of the "world tendency, humanization of penalty moderation". By 1948 the United Nations General Assembly of the Universal Declaration of human rights "and" the constitutional principle of respecting human rights spirit, has brought significant changes to the specific content of penalty. The number of countries to abolish death penalty is increasing, the free punishment execution, by 1955 the first UN on crime prevention and criminal treatment conference "detainees treatment standard minimum rules" has made a great impact on national execution. Moreover, the emergence of new treatment inside society active trend, avoid the traditional freedom penalty itself, not the criminal is contained in the criminal facilities, so that it can maintain normal daily life in the society, thus to a certain extent, avoids the disadvantages of short-term freedom penalty, in order to seek the improvement.

   In the recent period, due to terrorism, drugs, triad organized crime is rampant, the criminal law has strict tendency, certain but, by means of criminal law to set up a new accusation, expand the scope of crime, aggravated punishment of these traditional, crime in the corresponding modern has great limitations the. More important still is to perfect the related system of preventing and combating crime, especially to abandon the political bias, expand international cooperation, to achieve the prevention and tracing system of international crime, is an effective way to control the crime. Of course, in the substantive criminal law, the modesty of criminal law itself always cannot ignore should have, in the fight against crime. At the same time, still need to pay attention to limit determination of penalty punishment, to prevent abuse. In the foreseeable future, the criminal law of many countries will continue to struggle in the moderate and severe stultify oneself in.