In the vision of harmonious social context, the modesty of the criminal law is a basic demand of the society governed by law.The concept of the restraining criminal law is not in the criminal code, but a concept in the theory of criminal law.In recent years, the theoretical circle of criminal law has been widely discussed on modesty, but there are many relevant theoretical problems which need further study.
The basic meaning, tolerance
With the continuous improvement of the legal system Chinese, the attention to protection of human rights, China's criminal law civilization and people's value concept has become more rational, the modesty of the criminal law is more and more China jurist's attention and advocacy.
Modesty, namely, the modest inhibition.The word "modest" in criminal law is made by Japanese Zhengda's subjectivism master Dr. Miyamoto Youngxiu first proposed in the "Outline" in criminal law.The modesty of criminal law in the theory, different scholars have different points of view: the Japanese scholar Hirano Ryuichi pointed out: "even if the criminal violation or threatened the life of others, nor must direct the use of criminal law.If possible, by other means of social control is the ideal.Can say, only in the other social controlling means is not sufficient, or other social control means (lynching) is too strong, the penalty when necessary, can use the criminal law.This is called the complementary or modesty."[1]Professor Chen Xingliang said: "the modesty of the criminal law, refers to the legislator should strive to minimize the expenditure -- and even less with no penalty (and other alternative penalty measures), to obtain the maximum social benefit -- the effective prevention and control of crime."[2]Professor Zhang Mingkai said: "the modesty of the criminal law, refers to the criminal law should be based on some rules of control punishment scope and the degree of punishment, namely all other applicable laws to restrain some illegal behavior, to protect the legitimate rights and interests, not to its provisions for criminal sanctions; those who apply for the lighter to suppress a crime, to to protect the legitimate rights and interests, don't set the heavier sanctions method."[3]In the author's opinion, the different tolerance to criminal law scholars just described, but are related to two aspects of the scope of punishment and the degree of punishment.
The modesty of the criminal law embodies a kind of idea of modern criminal law "cautious punishment", but also reflects the modern society for the protection of human rights value.The author thinks, the modesty of the criminal law refers to the criminal law is the last line of defense to maintain social stability, the scope and extent of penalty according to certain rules in the process of criminal legislation, justice, can be solved by any other means without criminal law means to solve; can be used without penalty light punishment.
Two, the theoretical basis of modesty
Everything has its own basis, without the basis of things is equivalent to a passive water, trees without roots, won't have a big development, also won't have a lot of meaning.So, to a more in-depth things must be clear is the basis and origin of things.This part of the restraining criminal law theoretical basis and origin of.
(a) theory budding restrained (origin)
In the human history of the development of criminal law, punishment has experienced from the brutal to the human nature, to prevent from the initial tool when it comes to crime said.The restraining criminal law is the essence of the state as a violent ruling tool, the violence of the concession and restrained.With the increasing international appeal for human rights, changed between state power and civil rights as well as the relationship between the concepts, namely, in developing countries, the implementation of the criminal law of state power should be restricted, to maximize the protection of civil liberties.To fundamentally solve the basic contradiction of society, as well as the crime criminal law, not by relaxing the practical scope and increase the punishment degree can solve.We want to crime phenomenon the social necessity and rationality have certain understanding, can help us to choose the reasonable criminal policy.During the period of ancient Rome jurist Urby Ann proposed the division between public law and private law.This suggests that he wants the state in the exercise of public power, not infringe upon the private rights of citizens.Beccaria points out, a correct penalty, its strength as long as enough to discourage crime is enough.Such ideas laid the foundation for the development of the criminal law after.
In the theoretical circles generally think "this one formulation of modesty of criminal law" was put forward by a Japanese scholar Hirano Ryuichi.The restraining criminal law he proposed to have the following three aspects: complementary, not a criminal law; two, integrity of the criminal law; three, tolerance of criminal law, or free respect.Timely public safety is invaded, other means of control did not work, the criminal law is not necessary to be punished without missing.
In the criminal law thought in ancient China is severe penalty doctrine thought, and this thought had far-reaching influence on ancient China's criminal law, and that the harsh criminal law can realize the national long period of stability, believe that criminal law can solve all social contradictions.In the long river of history Chinese of criminal law theory is the most influential legalism.Shang Yang's reform to carry out with drive and sweep, strict law means the Qin Dynasty to the hitherto unknown prosperity.So far, the jurist crucifixion by the respected and affirmed the rulers of hitherto unknown.The severe punishment doctrine has been an unprecedented development, but there are also "cautious punishment thought in" severe law.For example, the early Western Zhou Dynasty, the rulers of the "Ming Shen Xing" idea, advocated "Xiang Xing", "cautious punishment" and "torture" in early Han Dynasty ";" constitution province punishment "said;" the Tang Dynasty can not be resurrected, with justice in wide Jane "said.Thus, the modesty of the criminal law in China ancient criminal law have also developed.
(two) where the legal restraint
The restraining criminal law jurisprudence basis in what place?To answer this question to find by hard and thorough search.The penalty sanction fee uniqueness, non supremacy, which determines the modesty of criminal law.The restraining criminal law the legal basis is mainly reflected in the following aspects:
1, the crime and penalty method
When a person is sick, people often think of why will get sick, sick root in where, to an antidote against the disease.Is the same with the crime reason, to reduce the crime rate, the root must be clear of crimes.Only to clarify to the cause of crime to develop more suitable punishment strategy.
Crime is a kind of contempt of the social order is the most obvious, the most extreme way.From the crime of four elements, namely, subject, object, subjective aspect and objective aspect.As can be seen, the crime includes not only the factors of individual psychological reasons, including economic, political, cultural, legal origin.Crime is any kind of social form can disease emergence and existence.There are many factors of crime, but down there are two factors: one is its own factors; two is the environmental factor.The famous Japanese scholar asked the court to filling professor pointed out, the crime on the surface is a kind of abnormal behavior, but it is the normal projection of social pathology.Therefore, environmental factors can not be ignored.
The punishment is the ruling class in order to maintain social order development last resort last resort against crime, eventually become the last line of defense of the ruling class.Punishment can make people have a sense of fear, but not solve the fundamental social crime, that is to say, the penalty method is a kind of temporary crimes do not cure the strategic means.
The single 2, by means of criminal law
China's "criminal law" the third stipulation: "the law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly provided for the crime, shall not be convicted or punished."The principle of legality, i.e..From the "criminal law" the third can be seen, only the provisions of the criminal law of the behavior of criminal law, in order to use or not.
When a person violates the criminal law, her adjustment method is always the same, namely the application of the criminal law (torture), but the application of criminal law is not able to handle criminal behavior after all, and some are regulated as criminal behavior is not only the use of penalty is the best solution, through other means, such as morals, ethics, religion and so on can be solved and regulation.
In order to diversify the crime and criminal law means, effective control methods of crime criminal law can not be enhanced, so that the expansion and arbitrariness, which requires the criminal modesty.
3, the social harmfulness of the criminal law
The criminal law by the means of penalty so that social order is restored, or by a certain punishment to the criminals.Kinds of punishment including principal and supplementary punishments.Principal punishments including control, detention, imprisonment, life imprisonment and death.The criminal law is the last line of defense to protect the social interests, must be guaranteed by the state force implementation.From the kinds of punishment can be seen, if the act violated the criminal law, it may sacrifice his freedom, life, and other aspects of the rights or qualifications.Therefore, the criminal law itself has certain harm, this need not be the abuse of criminal law.If the abuse of criminal law, the consequences are social people do not have the ability to fight for justice, may form the overwhelming killing power.The penalty is irreversible, once the damage could not be restored by the damage before state.For example, create a great sensation in the Zhao Zuohai case.Even if can be corrected promptly, this matter has caused irreparable damage.The death penalty is a punishment in the penalty, the penalty is completely deprived of human life, as long as the implementation, there is no room for manoeuvre, cut off the road after the criminal reform.This penalty may encourage people to commit suicide psychology.This requires, in the use of the penalty must be ruled out any possibility for the implementation of relief means.Criminal law stipulates the "principle of legality", that in our use of criminal law, either in scope or in the degree of punishment, not exceeding the prescribed limit of punishment.China's judicial and "no punishment in doubt case" or "suspected crimes leniently" principle.All this shows that the criminal law must have the modesty.
Three, limiting value
Every thing has its own existence and the development value, the modesty of the criminal law is no exception.Modesty is one of the basic value of modern civilization of criminal law.The modesty of the criminal law not only includes the modesty of criminal legislation, also including the modesty of criminal justice.The value connotation of the criminal law include the following aspects:
1, modesty is the need to build a harmonious socialist society.
2, modesty is the need for the protection of human rights.
3, modesty is for better maintenance of orderly social development needs.
4, modest needs to promote the steady development of economy quickly and effectively.