The instructor:Lu Qinzhong       

Keywords: the modesty of the criminal lawPunishmentNon crimeLight punishment

A,The restraining criminal law origin

Criminal law is a kind of have to evil. The criminal law on the understanding, we pay more attention to the rationality of criminal law,LegitimacyAnd the necessity. The German scholar who said,"The penalty as a two edged sword,Used properly, the individual and society two benefit from it; used properly, the individual and society two victim."Punishment is the last line of social justice, punishment should uphold the principle of economy of use. This should belong to the administrative or civil illegal behaviors into of the criminal law, the penalty to regulation, on the behavior of people is in fact a kind of unfair, authority is an infringement of the private rights, even if the protection of social welfare such beautiful grounds also should not be allowed.ThereforeWe shouldThe expansion and abuse of the criminal law may be sufficient to maintain vigilance.In theFor the criminal law science is,AlsoA most ingrained in political science.

1957British Wolfen report,"The purpose of the law even to maintain public order and virtue, however unless based on social requirements in order to remove the illegal crime, protect individuals from harm and avoid corruption and corrupt, by the provisions of the law to achieve the purpose of borrowing talent, as a private moral and immoral, and non legal affairs."The Wolfein ReportIsIs regarded as the origin of the modesty of the criminal law. In fact, the real source of ideas originated in more than 300 years ago, which dominates in the West liberalism.It requires attention to the human care and for individual dignity.ThisInevitableFinally, adhering to the criminal law, so the behavior threat the interests of the law or to non criminal means to restrain, criminal law should not interveneThe.

Two, the restraining criminal law meaning

At the end of the criminal law, means the modesty of the criminal law, according to Professor Chen Xingliang view is that, the legislator should strive to minimize the expenditure--With even less penalty (and other penalties to replace measure), to obtain the maximum social benefit--Effective prevention and control of crime.It is the economy of criminal law, tightening, complement, punishment can not too outspread, if only by subjective and objective harm and criminal responsibility behavior, will inevitably lead to human rights violations of the state.Therefore, the modesty of the criminal law has the function of restriction, the rule of law in modern society which is due to the value significance of criminal law.

In today's world to punishment and non has gradually become the mainstream.The death penalty has been abolished or is not used for a long time in many countries.With strict does not governTo combat crimeHas become a thing of the past. China to the constitution to guarantee the rights of citizens, and the protection of human rights is the core concept of liberalism.In the social contract, another form of state power is the rights of citizens, to protect the rights of citizens is the only basis for the existence of state power. At the beginning of the penalty is to protect the rights of citizens to prevent it from coming is illegal and against another citizen or organization. The penalty power once given state, which means a restriction on the state: the state can only be investigated for criminal responsibility of citizens in the specified range, is the addition of the freedom of citizens. Therefore, the first priority of criminal law is to restrict the abuse of state power of punishment, and then to criminal sanctions.After all, the penalty is mainly toCitizenFree of restrictions and deprivation, respect for others and understanding based on the request of penaltyAs far as possibleDerogation.The application of strict liability will lead to imbalance in the function of criminal law, gradually shrinking over expansion and safeguard function: protection function.The penalty for crime punishment means, maintain its mechanism also requires a lot of manpower and material resources.

The modesty of the criminal law lies in: for some harm the social behavior, the state onlyYesIn the legal means and measures of civil, administrative, still not enough to solve, can use the criminal law method, i.e. by the criminal legislation of the crime, punishable by a penalty, and then through the corresponding criminal justice activities to be addressed. Application of the criminal law, should meet the following two conditions: first, the social harmfulness is serious. Secondly, as the harmful behavior reaction, punishment is inevitable. Treatment for this behavior, if both have no effect, can not be replaced, too expensive, we can think that punishment is inevitable.

Three,The restraining criminal law applicable

The present article thirteenth of the criminal law, with the proviso stipulated,"But circumstances are obviously minor and the harm is not great, not deemed a crime."This isThe criminal lawFor another, the tolerance shown.2006Years10Month held the sixteen session of the six plenary session devoted to building a socialist harmonious society has made the overall deployment, and the criminal policy of combining punishment with leniency is identified as an important part of the construction of harmonious society. This is not just"Wide"And"Yan"The sequence of changes. Both the modestly restraining spirit according to the spirit of modesty, and is reflected in the criminal policy in the. The modesty of criminal law is mainly applied to non crime and light punishment two aspects.

1Non crime, refers to the legislation or judicial organs, through legislative and judicial activities, will have been punished as crimes not as a process or mechanism of crime processing. Can be divided into the law of non criminal and non criminal facts. The law of the non crime refers to the legislation that was thought to be a crime is no longer regarded as crime through legislation of certain activities, it is the other way."A prudent lawmakers in the face of whether there is a need to specific types of crime or whether there is a need to criminal sanctions continue to apply to specific types of behavior, first ask yourself whether there are other feasible control method". There are mainly four: legal, administrative law, civil law, neutrality. In fact, non crime although the norms of criminal law about certain behavior has not changed, but the fact is not dealing with a criminal case judicial organs. This behavior can be divided into the non criminal prosecution and trial of the non crime.

2, light punishment means, with respect to the nature of severe punishment, light punishment is punishment to the development of gently, light punishment and non criminalization has similarity. In the criminal legislation, if the provisions of lighter penalty can be, there is no need to set a heavier penalty; in criminal justice, has been identified as a crime, if the use of lighter penalty can need not apply a heavier penalty. Reform and opening up soon Chinese in over 20 years of hard, and"Strike"The results just at the beginning, the social incidence rate declined in a short term, and thenInconvenienceA strong rebound. The severe law can not achieve the expected results. In dealing with the slight crime, social harm is not crime, light punishment is undoubtedly the most of humanity, the most targeted selection.

The main measures are used to strengthen the regulatory and criminal probation. Is conducive to the formation of the socialization of execution and the criminals return to society, to prevent cross infection in the prison, brewing a greater social harm of crime. Another requirement is that the abolition of the death penalty light punishment. Although China in the short term is not likely to abolish the death penalty, but should also restrict the death penalty strictly, make the punishment to light slow direction. The light punishment is a process, a trend. In the current penalty has been heavier circumstances, regardless of to reduce the penalty component actually suddenly greatly, may produce some negative effects.

Because of the cultural differences between countries,China not like western countries that willIn thePublic drunkenness, gay, sodomy, abortion, minor crime in the criminal law, but still retained by them has been cancelledTheTheSuch as:Prostitution, gambling related crime that the without too much harm to society, its existence is to maintain a good social customs of the crime. In fact, it is more important to China, now the rapid development of social economy, accompanied by the criminal law, especially the economic criminal law, constantly to quickly modify time, how in the crime of the crime of holding excessive vigilance. Only in this way, can realize the modesty of the criminal law China, providing security for the social economic development and stability.

Reference material.

(1Chen Xingliang:) "philosophy of criminal law" (Revised Edition), China University of Political Science and Law press1997Year Edition

(2] Chen Xingliang: "the ontology of science of criminal law", the Commercial Press2001Year Edition

(3Chen Xingliang: "the construction of value) of criminal law"2Edition, China University of Political Science and Law press206Year Edition

(4Chen Xingliang editor: "review") criminal law article21Volume, Peking University press2007Year Edition

(5Wang Mingxing: "criminal law") on the spirit of modesty, Peking University people's public security press2005Year Edition

(6Zhang Mingkai: "the criminal law) Maxim launched", Law Press1998Year Edition

(7Criminal law science research center of Renmin University of China) organized the preparation of modern criminal law, "" the exploration1Volume, Beijing: Law Press2003Years12Month