The modesty of the criminal law interpretation

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  • / Author: Aaron Lewis
 Interpretation of the criminal law
                          Author: Guangdong Jinzhen Luo Jingbo law firm lawyers (partner)
    The restraining criminal law is not a kind of principle, or at least not a legal sense of principle, but it is a belief, is the interpretation of criminal law.
    Modesty about criminal law, scholars from various countries are basically the same, such as the Japanese scholar Hirano Ryuichi thinks so, "even if the violations or threat to the life of others, nor must direct the use of criminal law, if possible, to other social rule method is ideal, can say, only the other social rule inadequate means to make, or other social control means (such as lynching) is too strong, is replaced by the penalty when necessary, can use the criminal law. This is called the criminal supplementary or modesty". The Taiwan forest Yamada also said, "the penalty limits should be indented, not expanded; and the penalty is national as a last resort to the protection of legal interests and the maintenance of law and order tasks. Can not use the criminal law, and by other means can also to maintain the order of society and the protection of social and personal interests when, you must give up the punishment." ⑵
Their view, simply put, modesty of the criminal law, also known as the necessity of criminal law, refers to the presence of the legislature is only in the specification is essential -- no method can substitute other appropriate penalties conditions, can be a violation of the law order set into crime.
The modesty of the criminal law is mainly for lawmakers, refers to the legislation should hold in the formulation of criminal law belief, it is the philosophy of criminal law, is also the rulers of ascension. But to the judicial stage, need is "equality before the law" and "nulla poena sine lege" principles of criminal law, the judicial stage, prosecutors, judges should strictly in accordance with statutory laws, even if there are still certain discretionary powers, for some mild cases can be appropriate, they can benefit from the to solve the contradiction of choice or not and shall not be prosecuted, convicted, and at the same time, the victim can also be free to choose whether or not to prosecute, but in these cases the purpose of restraining criminal law origin and the far away. In judicial practice, especially to clear: when one act violates the two kinds of different branches of law, judicial application when the choice is "first principles method is better than the light law" rather than "modesty"; and when the two departments also violated the law with criminal law, criminal law behoove outperform other department law.
 
(a) the modesty of Criminal Law -- the historical trend
The world history of the development of national laws have followed such a law, criminal law Everything is contained therein. gradually from the adjustment of social relations back down to a prominent the special adjustment means the legal department to ensure the evolution process. From which we can see with the law society where expansion, another opposite phenomenon, that is the tightening of criminal law, the criminal law is gradually decreased in the whole legal system of specific gravity. Method lost more and more in criminal law backed by violence of mandatory, the penalty is just a lot of law enforcement as a means of parallel, limited to handle most deterrent in social relations, without dew, but the penalty is only as a last resort to determine the punishment of certain acts. When the criminal law was abandoned as a no adjustment means, the administrative, civil and other various social adjustment method, method, thereby increasing its control to the social relations, become social ties.
For example: with China legal history China of provide for oneself basically is a closed system, judicial reform until towards the end of the Qing Dynasty began to communicate with the world, we can more clearly see the clear development context. China ancient legal system has been the punishment is not divided, pan punishment thought has been dominant, any slight now appears to be the common infringement will be extremely harsh punishment to punish. First law is to provide a "punishment" situation, such as "Lu punishment" "nine square", even if the subsequent emergence of the "law", it is to emphasize its necessity, regulate the society, this kind of "punishment is not divided, the penalty" pattern has been extended to the legal reform in the late Qing Dynasty, which occurs in the law department differentiation means a beginning -- from the criminal law, the law in the overweening gradually diminished to on an equal footing with other legal status, which also marks the beginning of Chinese legal modernization.
 
(two) the theoretical source and restrained
The modesty of the criminal law is the essence behind the state as a violent ruling tool, the violent subordination and introverted, the fundamental reason lies in the relationship between the state and the people and the concept of power and right to change. Transformation and legal viewpoint to the modern criminal policy criminal relativism traditional absolutism nation, this kind of change makes people gradually realize that the state power is not restricted, the capacity of the state is not absolute. The criminal law of generalization and severe punishment can not fundamentally solve social contradictions, also can not help to curb crime, the crime phenomenon has social necessity and rationality of a certain sense understanding is more conducive to the rational choice of the criminal policy of the people.
This idea can be traced back to ancient Rome jurist Urby Ann, the division between public law, private law he proposed has shown that ancient these outstanding jurists on the authority of the state of alert, hope the national authority can only be maintained without interference of private rights in.
Enlightenment thinkers of social contract theory has shown that the country for personal life unwarranted interference in fear, countries can only is to protect, promote national interests when necessary, apparently the purpose of law is the only protection rather than punishment, punishment must be at least part of the right sense of. As inherited the thought of natural law and contract theory, Beccaria said, "it is this need to force people to cede part of his freedom, and everyone wants to give the public to save that freedom to less, as long as enough to let people protect themselves on the line. This a crystallization of minimal free form of punishment right. All the extra things are good at the right......". ⑶
Bentham (Jeremy Bentham, 1748-1832) is a utilitarian synthesizer, Bentham from the penalty and utilitarian purpose of modesty, advocate of criminal law, and puts forward the modesty of the. Bentham thinks, whether a behavior or a kind of social practice desirable morally, depends on whether it is better than other alternatives to promote the happiness of mankind. The general law and the ultimate goal, according to the principle of utility, but is in the best interests of the whole society. According to the utilitarian philosophy, Bentham thinks, the essence of penalty is a pain, only when the penalty to achieve good results over the crime caused by the evil, the punishment is fair and reasonable. He pointed out that:
"Any punishment is damaged, all the punishment itself is evil. According to the utility principle, if it should be allowed to, that is because it is possible to exclude a greater evil."
Ihering said "the penalty as a double-edged sword, use not when, in two countries suffer", Becali pointed out: a correct, its strength as long as enough to discourage crime is enough. Do these scholars agree that the penalty itself is a kind of evil.
The modesty of the criminal law for the criminal law benefit into account, with the least resources of criminal law, criminal law benefit biggest harvest. Restrain the crime criminal law may have a positive social benefits, but also means that a certain social cost. The penalty is a kind of resource, this kind of social resources are limited. USA scholar Robert. Yoren through to the economic analysis of penalty points out: the optimal deterrence effect is not to eradicate all crime, because doing so at a high price, but also social benefits will continue to reduce the. Policy makers need to be configured on the limited resources, to achieve deterrence goals with minimal costs, that is to say in order to achieve this goal with efficiency. It can be said, we aim at minimizing the cost of operation of the direct and indirect costs of the crime and trial system. ⑸
School of criminal sociology thought also contains profound thought on restraining them, they think that restrain the crime is not only a deterrent effect of punishment, but on the overall development of the society. The penalty is not behavior but behavior, the aim of penalty should be special emphasizes prevention; penalties and species should be to achieve the necessary degree of education only prisoners, from the development, transformation point of view, the method is mild in order to receive a better modification effect, the same criminals can use light no penalty weight; can use a short sentence is not sentenced to long prison sentence; can not penalty method with the non penalty processing method. The modern criminal policy carry forward the representative of Lester (Franz Von Listz, 1851-1919) that mass poverty is the biggest crime basic training. So, the best social policy is the best criminal policy, social policy and relevant punishment than penalty function is much more. "In the research of modern criminal policy is a major achievement is, eventually reached a consensus: in the fight against crime, the penalty is neither the only nor the most security measures. The penalty must be critically evaluated the effectiveness." "The punishment is the tool to achieve their goals, however, to conform to the requirements of tool concept, and in its use as far as possible to reduce, because the penalty is a double-edged sword, it through the damage law to protect law benefit." He is
 
(three) determine the modest standards
Generally speaking, the following conditions did not set the necessary criminal legislation: first, no effect of punishment. That is to say, if some kind of behavior setting for crime, still can not reach the effect of preventing and controlling the crime, the legislation is not feasible. Second, he can replace. If a criminal law prohibited content, can be used in civil, commercial, economic or other administrative means to effectively control and prevention, the criminal legislation is not necessary. The British philosopher Bentham has a famous saying, called "soft law can make a people's way of life with the spirit of humanity; the government will be respected in the middle of citizens." The philosophy of law on the basis of this sentence is the criminal law so to pursue the "modest" principle. Therefore, the illegal behavior of the crowd at the provisions of legislation of crime is not desirable. Thirdly, no benefit. Refers to the legislative, judicial and law enforcement consumption out than the proceeds, negative effect is obtained by the benefits of punishment should be less than the. In the above three kinds of circumstances the use of penalty is not desirable, should be modest.
 
(four) the main idea of the restraining criminal law
The inevitable contradictions arising from national social economy, in order to handle these contradictions and the realization of restraining criminal law, we must relate to the relationship between the criminal law in other laws, including how to deal with the relationship between criminal law and tort law, criminal law and administrative punishment law, realize the coordination of those long, is the basic idea the criminal law modest.
In modern society, the tort law is more and more important, and gradually expand the scope of application, the modern rule of law embodies the value. The tort damages, more conducive to the protection of citizen in market economy, the tort law developed, more can reduce the conflicts and disputes between citizens, so that the scope of the criminal law of austerity.
And no impassable gulf between tort law and criminal behavior, but only the difference between social harmfulness, starting from the modesty of the criminal law, will be some minor crimes should be non crime, by the tort law to adjust. At the same time, the criminal law only in conjunction with tort law, can be more effective adjustment social relations, specifically in; if not well according to the tort law is a good solution to disputes, may intensify the conflict, a crime. Tort law bear the main protection of the rights and fundamental mission of the criminal law, and only in the tort law is not enough to guarantee civil rights cases, play a complementary role in the protection of the rights, become the last defense line of legal.
In violation of the administrative regulations of the state, only in its social harm to certain extent, lawmakers will be defined as criminal punishment, be certain. The distinction between administrative punishment and penalty is the only relative significance, it mainly for administrative illegal and criminal illegal conversion between. In order to prevent excessive expansion of the penalty, saving judicial resources, it is necessary to strengthen the administrative punishment law.
Tort law, law of administrative punishment, punishment is punishment law, system together they formed law. In the early stage of legal development, the three into one, basically to the penalty ways, with the social evolution, an important aspect of criminal law evolution is pure punishment to prevent development, into the vision of the criminal policy of not only the meaning of the criminal law the crime, but also including the civil law and administrative law, even other deviant behavior, based on this consideration, the criminal law and tort law, the law on administrative punishments to construct the crime prevention of the dam, in the dam, the criminal law is the last line of defense, in crime prevention, tort law and administrative punishment law became law in place, with a greater range of instead of criminal law, and crime prevention role play to resist, only completed in two not enough to stop the crime under the criminal law, only to be added, in this sense, criminal law show modesty.
 
(five) the way in Chinese modesty and the way out
Generally speaking, is the main ways to realize the modesty: non criminal and non penalization. The non crime, refers to cancel certain offences, which exclude certain behavior should be the nature of punishment, the traditions of various minor crimes into general illegal acts in violation of the order. The non crime, its main purpose is to avoid excessive intervention of criminal law on the social life, make the criminal justice more effective in dealing with serious crime, the crime in the maintenance of a minimum limit must be public order within the. Non penalization, refers to reduce the legally prescribed punishment for certain crimes in the criminal, or to some crime or some criminals without penalty method of the traditional imprisonment penalty and non imprisonment penalty function method to reform criminals.
Non criminal and non criminal penalty of this international trend, we should learn from, but not without respectively, follow in sb.'s footsteps to completely copy into Chinese, to take into account the actual situation of the China.
According to Mr Chu Huaizhi, China's criminal law exist structural tendency of "severe but not strict": French is not strict, one is the overall criminal law is not strict, two is a crime (crime) is not tight, the common points between the two is the crime of not guilty. Harsh punishment, life imprisonment and death. A large proportion of;
China present criminal cases of the period, a pressing matter of the moment is to strengthen the prospective legislation, better play the role of criminal law on crime. On non crime of, now the main problems China is crime, especially the economic crime, some serious harm the economic order of the criminal law had not stipulated, the lack of substantive intervention on the problems of the loss of state-owned assets, securities market, stock market; on the fight against corruption, bribery crime law is too loose, to the West early experience with some mature ignore, indulge too; and as the scholars think that should formulate "from ruin" has been lacking, so many ordinary people unbearable serious moral corruption is not included in the scope of criminal law. Therefore, despite the current criminal law has universal punishment content, tight but the focus of adjustment remains to strengthen the french. Especially, the scope of such western non crime in administrative punishment law, some have had belonged to my country, blindly follow the western singing depenalization is not wise.
Chu Huaizhi on China's criminal law is expected, "strict but not severe", which is directed at the tendency of heavy punishment in our country, legislation and law enforcement departments to meet the need of the social public opinion "hate injustice like poison", he is still the value orientation of penalty, the problem of penalty, harsh prison not good. In the non penalty trend before, need to absorb the advanced ideas of Western learning, legislators should be combined with the actual needs of our fight against crimes, change inherent in the concept of punishment, to gradually diversify, light punishment for criminal responsibility.
Considering from the non penalty, we should pay attention to the non custodial penalty; for minor crimes and negligent crimes more widely applicable to non prosecution and punishment exemption; improve the present non penalty processing method, the strengthening of existing non punishment method of "operational" research, so as to continuously improve; the establishment of China's public security punishment system, legislators should be the reeducation through labor system of judicature, non penalization, and absorb some have proved effective and convenient in the non penalty processing method in our country, such as the driving ban, secured the release, weekend detention, social services, the formation of the non penalty system in China; penalty measures on juvenile crime depenalization.
 
In a heavy traditional country, in the era of reform and anxiety, social contradictions, "penalty" thoughts come very naturally rise, "strike hard" or disguised as "spring thunder action" and the like, the penalty as the solution to all problems and measures, emphasis on the restraining criminal law is not excess.
Japanese criminal law scholars Nishihara Haruo at the new Waseda University in 1976, he let people to think about the criminal law is a what kind of face. He mentioned a statue of Buddha, he want to say is the criminal law Perak means, kindhearted, "beyond the purely individual the passions of emotion, instead of God and Buddha to evaluate disputes".
Also, this is the "Buddha's face", I regard them as my interpretation of the modesty of the criminal law!
Mr Ge 1972 version of the 47 page "Hirano Ryuichi II" general provisions of criminal law
The forest Yamada "criminal law" Taiwan Commercial Press, 128
The [b] Beccaria: "on crime and punishment" (Huang Fengyi) China encyclopedia press, 1993 edition, page ninth
The [b] Beccaria: "on crime and punishment" (Huang Fengyi) China encyclopedia press, 1993 edition, page forty-seventh
⑸ [America] Robert ulen "law and economics" Sanlian Bookstore 755 pages
I [Germany] Franz Feng Lester: "the German criminal law textbook" (translated by Xu Jiusheng), Law Press 2000 edition, page twentieth.
⑺ [Germany] Franz Feng Lester: "the purpose of criminal law concept" (Ding Xiaochun), Qiu Xinglong editor: "criminal law" (second volumes)