The function of criminal law, also known as the function of criminal law, the criminal law positive role with its structure and operation can occur. The purpose of the criminal law and the function of the criminal law, there are both connections and difference.[1] There are views that, though from the text itself of understanding, the task of criminal law, there is difference between the function and purpose of these concepts, it ought to be, function mainly reveals the function of criminal law from the objective is objective; to establish the value of criminal law, is subjective; between the task of criminal law between two persons, is the unity of objective and subjective; but the three belong to the as a concept, can be understood in the interconnection.[2] This argument ignores the difference between the purpose and function is too simple, have to say is not appropriate. Note that, the inherent connection and difference between the function of criminal law and penalty function should be how to understand, to the crime suppression, preventive function, whether it can be considered to be the nature of criminal law enginery is the problem.[3]

The traditional view, the function of criminal law

As the criminal law in modern society of law function, act without value theory is considered the function, maintain order regulation function and the function to protect liberty,[4] Results no theory of value is considered the regulation function, protection function, security function.[5] This difference is the origin in the two position of understanding of the purpose of criminal law is different. This book basically agree with the aim of criminal law is to maintain social norms, to conduct without value, the following is a discussion of ideas:

(a) Regulation (regulation)

Standard function (Normierende Funktion), also known as the regulation of the function or the social ethic function, isClear normative evaluation of crimeFunction. As part of its content, including: through reflects certain act provides for the crime, which is associated with a certain penalty, to represent the behavior is legally worthlessEvaluation function; and, command behavior people make do not implement this criminal act decisionThe decision functionThis also, and assessment standards and norms of the criminal law determines the corresponding.

Regulation function is the essential function of criminal law, the crime, notice applying certain punishment, thus to explicitly state the criminal standard evaluation. This kind of evaluation, the criminal law as a code of conduct, plays the role of compliance order ordinary citizens; on the other hand, the criminal law on the judicial staff, as a norm of adjudication, become a pointer for crime and punishment.[6] The law as the criterion system of mandatory, "not only binding on the individual, but also has the binding force to the state power itself. The only way to ensure the realization of common purpose"[7]. The criminal law is not only limited personal and limit state, the double restriction function is one of the basic criminal law society.[8]

The provisions of the criminal law of the state punishment of prisoners, theTaskIsThe relationship between state and proper regulation. Therefore, must take into account the development is, to maintain social order, national public service to its culture on the one hand, on the other hand, through a certain extentStart inhibit the national penalty powerWithout unduly infringe the personal freedom and other benefits. The former is needed in order to maintain the function, generated from the latter requirement is the function to protect liberty.

(two) maintain order (protection)

Simply refers to the criminal law as a social norm, and other legal and moral, social customs, norms to maintain social order function of this argument, in fact, is a kind ofOf course, interpretationThere is a problem. The key is to reveal, the criminal law is through what path or way, to achieve the maintenance of social order function.

In order to maintain function (Sicherungsfunktion) in two aspects:

1 The protection of law

The protection of law (Rechtsg ü terschutz) function, expectation isBy the criminal law practiceProtecting the interests of social life.[9] Legal interest, namely protect law benefit. Although in other law, protection of law benefit also use various forms of criminal law, but by the means of punishment, in order to protect the more thoroughly. So, only in the full protection of the law is not other, it should be recognized as a criminalThe last resortTo protect the interests of the applicable. Based on the nature of this relationship, called the criminal lawThe second properties(Sekund ä re NaturThe complementary nature () orKomplement ä re Natur). However, this does not mean that the relative to other law criminal law in a subordinate position. Want to use this powerful tool in the protection of certain rights on this point, the criminal law has a meaning for existence alone.

There are no differences of opinion, protection means have the means of protection of criminal law have with other laws, and deny the complementary principle of criminal law. However, the legal effect of punishment or other legal means of security measures has the incomparable, here the problem is the non crime (Entkriminalisierung) requirements, which could protect the function of criminal law restrictions on the social function of the.

2 General prevention and special prevention

Crime prevention function, also known as the suppression of crime function, shown as the general prevention and special prevention function function. General preventive function, is generally directed society from crime function; special preventive function, refers to the specific inmates make it will not make the same sin function.

In order to realize the function of protecting legal interest, need to give full play to the role of criminal law in general prevention. In any country, the legal punishment of larceny is higher than that of the crime of intentional destruction of property, from the view of legal interests infringement degree is the same, not because of illegal degree of the former was high, but because of the necessity of general prevention. "The formulation of preventive effect of criminal law crime itself is to restrain the crime for the purpose of, therefore, allow all doubt, criminal legislation is an important means of crime prevention."[10] However, this does not mean that any form of crime can achieve the desired effect of crime prevention. Indeed, any crime is not possible due to crime and completely destroyed, but the crime results should be the crime rates in general can inhibit the limits of tolerance.[11]

(three) freedom

The function to protect liberty (Garantierende Funktion), refers to the criminal law must be clear that certain behavior is crime, the Department in a certain penalty, toLimit the use of national penalty powerIn security, good people's freedom andGuarantee their own freedom. Specifically, the general social, should guarantee no violation of the criminal law norms of social individual is not to be the national penalty power interference; for specific crime, also ensure its not receive more than the scope of the law punishment, which are not set our country penalty against humanity or contempt for human dignity.[12]

The criminal law safeguard function, is the biggest characteristic of modern criminal law, is after the victory over the cruel and arbitrary use of power of punishment the historical fact that the principle of,[13] Marks a complete set of freedom and human rights in criminal law. Accordingly,LesterThat criminal law is the "prisoner's Great Charter" (Die Magna Charta des Verbrechers).

(four) the relationship between the function of criminal law

Criminal regulation function in the evaluation function, relationship exists between means and purpose and the function of guarantee of criminal law; criminal regulation function will determine the function, and the function of criminal law between the protection of the interests of the law also exist in the relationship between means and purposes. As mentioned before, the regulation function is through the criminal law as a norm of action and judgement to realize the regulation function, and provides an objective basis for realizing the function of law and human rights protection.

As a function of criminal law and criminal law countries by national two party on the criminal law have different expectations, but also between the law and human rights protection are the relation of a paradox, also by the Japanese scholar called two antinomy relationship. Of the twoContradictionIncreasing attention is, the guarantee of human rights will lead to crime, not on the benefits of effective protection, on the contrary, strengthen the protection of law and the protection of human rights, also can make people lose faith in law and order, resulting in difficult to maintain social order and results. Therefore, only to reconcile the role of the two, the criminal code to give full play to its function of maintaining social order.[14]

In short, the criminal law is to maintain order function and the function to protect liberty, in close together, but inevitably contradict each other, mutual restraint. The harmonic of the two, never absolute, clear standards. What about the importance of them, each time, every society and every scholar showed slightly different, but, it is not allowed to tend to one side, based on fully weigh the advantages and disadvantages, how to adapt it to keep them in harmony, it should be said that it isThe core of criminal law theory and Practice.[15]

Two, risk society and the change of function of criminal law

Bring about the development of science and technology of network communication developed and highly informative, comprehensive transformation of the structure of modern society, this kind of transformation is not only reflected in the work and life style, and even penetrated into people's ethical values and personality development level. Can say, the modern society is a risk society.[16]

(a) the danger in modern society

The characteristics of the risks involved in modern society, can be summarized as follows:[17]

1The potential danger

Although the positive side, a social application of the rapid development of science and technology at the same time, on the other hand, the society also contains a high risk of science and technology as the negative side of the. Moreover, the risk is unknown, because it is highly developed, so not only is difficult to control and management, and if the dangerous reality, will cause incalculable damage. For example, in the use of high - speed means of transport, handling or using the product, with the risk of pharmaceutical and medical technology.

2A wide range of risk

The establishment of modern society is widely applied and popularized rapidly developed science and technology result. The danger here, in the short term, at the same time point of view, is across the wide and profound influence, according to different circumstances may cause great danger to all humans upon earth or quite extensive people. In addition, the risk in the modern society, from the long-term, through the point of view, is across time is very long and profound influence, according to different circumstances may cause dangerous deep harm to the next generation. In this way, the risk in the modern society, whether in the short or long term, the impact can be said to have had extensive. For example, risk, economic activities, business activities with the danger of nuclear energy with etc..

3The accumulation and chain risk

Risk in the modern society, if taken alone may harm is very thin, but when they continue to accumulate, overlapping and chain compound role, will lead to profound social situation irreversible. When the deep things these danger to society, it is not enough merely to grasp the dangerous accumulation of · chain effect or the most significant risk to regulate. For this point, for example, consider the risk damage to the environment, the pollution of the environment is enough.

(two) the function of criminal law should be reflected in risk society

Among regulation function, protection function and security function of criminal law which have opposite, this opposition is especially prominent in the risk society. Especially in the legal concept of abstraction and the prevention of the legislation and prominent today, rethink and determines criminal law enginery ties, or even that new criminal law, such as "new ethic function", "side assistance function" is to study the problem of.

The theory of criminal law should be how to deal with the issue of criminal law function of the danger in the society, although it is not discussed enough, but has already begun on the general provisions of criminal law theory of crime have a significant impact on the idea of system.[18]

Three, the restraining criminal law

The reality of criminal law can play function is not infinite, because the criminal law is the very powerful means of crime, but,Can not be said to be the decisive measures. In order to make the crime extinct fundamentally, must then consider removing the reason itself. As is so often said "good social policy is the best criminal policy"[19]Rather, it is a social policy issue. Therefore, it is necessary toOn the basis of humanism, carefully, and modest application of criminal law. The criminal law should not be illegal behavior, all of the actions of responsibility for the course object, only limitedNecessary to haveThe range should be applicable penalty. This principle is calledModesty,[20] Also should be the basic principle that must be considered in the criminal law legislation and the application of.[21]

(a) the modesty of the criminal law's contents

1The supplement of the criminal law

The penalty is used to supplement the civil, administrative sanctions means, in its not enough to restrain some social violations used sanctions, was the substitute's consideration, also known as the criminal lawThe last method principle(Ultima ratio)[22] OrPunishmentAttached propertiesPrinciple(Subsidiarit ä tsprinzip)[23].

2The incompleteness of criminal law

Fragments of known criminal law. Criminal law is the supplementary consequences, is to make up for lack of means, so its applicable scope is not complete, many problems need not be adjusted or processing.

3The tolerance of the criminal law

Penalty is the most severe sanctions, for different values, for the pure violated ethical ethics while not harming the social behavior is not to criminalize. Or, "on the protection of the interests of the measure, if it is not necessary to have the case, also should pay attention to the spirit of tolerance and control punishment"[24].

(two) the modesty of the criminal law of reason

The criminal law is the state's punishment power as the ultimate form of necessary evil evil, simple revenge is not the purpose of criminal law today, and must establish a high value target, so the harm justice evil is willing to recognize. German criminal law expertsJescheckIn the2002The German criminal law amendment published, there is a set people thinking:

Education and the reflection of this period has gone beyond the fieldDomain, and deeply shocked and changed the ideas and emotions of the people.The criminal law is only a means of social control, its application will inevitably lead to serious damage to the freedom, dignity, property and derived other adverse social consequences, this concept has win support among the people. Therefore, the criminal lawMust be used in limiting the maximum possible extent. At the same time, the side effects of the criminal law, the violence of the state of multiple penetration of ideology, but also greatly enhanced the understanding: only in the establishment of a liability on the basis of the principle of criminal law, it may protect the masses of the people live in freedom. Because only the law just as responsible citizens, and by allowing and forbidding norm to individual reason and self-discipline consciousness a solemn appeal. Today, people have generally realized, not all the methods to control the crime seem effective is justice. Lawmakers demanded, any sentence must be taken into accountPunishment for criminals possible future life, and will never allow the power of punishment can only be regarded as a fair representation. As the basis of the criminal policy of humanitarian, not everyone holding things in sympathy for such a personal thing, shared responsibility for the crime problem but also a social phenomenon should bear. For the offender's concern, also no longer is a favour, but the welfare state a mandatory task. Compared with the past, the criminal justice has not been understood as the process of realizing justice, but is understood as the competent authority in different ways to help social mission to the crime person.The effectiveness of the criminal justice, not only from the criminals to statistics socialization to judge, and moreShould strengthen and get our era social conscienceTo adapt to the criminal activity to measure.

This passage has revealed the side effect of penalty and the modern criminal law's mission to us. According to the sociology and Criminology label theory, the penalty is easy to cause the "brand effect" of inmates, increase the return to a normal life and social difficulties. Thus, antisocial emotion and moral conscience may inspire inmates continue to decay, so only by careful and appropriate penalties, criminal law itself can maintain stable social order objective.

(three) of the criminal law limited understanding of Anglo American Criminal Law

Anglo American criminal law because of its case law tradition, in the criminal law limited mainly by the "due process" (Due process) to achieve. Legitimate procedure pattern originated from moral skepticism and penal pragmatism,[25] In fact, qualitative restrictions on the legislative power of criminal law provisions, such as "USA the Fourteenth Amendment to the Constitution without due process of law, no person shall be deprived of life, liberty or property"; procedural limitations to criminal law and language.

The revised British1991The criminal justice act of the year1Article2Provisions of paragraph [limit] sentenced to imprisonment:"The court shall not to criminal imprisonment penalty, unless the court determines that -- (1) the crime, the crime related or associated with one or more crimes seriously to only through the prison sentence to the behavior of Justice (2) when the crime is violence or sexual crimes, but this decision can properly protect the public against the criminals."The meaning of the terms is established in terms of imprisonment penalty, must become the only" legitimate "sanctions.[26]

America famous criminal juristParkeIn the "criminal sanctions boundaries" in one book, punished the required conditions are: (1) the behavior for most people to social threat is significant, is not recognized by any important part of society; (2To be punished) behavior to meet the purpose of punishment (3It does not ban Society) inhibit the desired behavior (4) through the fair, non discriminatory treatment (5The criminal procedure) ban the behavior, will not become a burden quality or quantity in the program (6There is no appropriate method instead of punishment) and the behavior.[27] It should be said, the words are in continental law system and the modesty of the criminal law has the same purpose.