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Research on the Legitimacy of Penal Punishments

Author: TaoRan
Tutor: YangChengJu
School: Anhui University
Course: Legal
Keywords: criminal penalty justification source objective
CLC: D914
Type: Master's thesis
Year: 2010
Downloads: 45
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Abstract

The aim of this paper is to speculate the justification of criminal penalty originally and deeply. Using the methods of deductive reasoning、historical analysis、comparative analysis and empirical analysis, following the reasoning tradition, taking the thinking of the concept of "state power" and "rule" as the starting point, the paper argues the justification of state power and makes the point that, in all types of countries, the initial purpose of people who "accept" be ruled can be logically tracked back to seeking safety, then no matter from the motivation of oppression or carrying out contract, any logical state power is to obtain "more" "real rule", if it wants to obtain "real rule", it needs to obtain "the wish of accept" of the ruled people, and, if it obtains "the wish of accept" of the ruled people, the result of power operation must be two:one is protective purpose, and the other is creative purpose. Then, this paper argues that the basic goal of criminal penalty and of state power should be in one continuous line, that is to say, doing best on "protecting rights、promoting well-being and promoting human development".Secondly, on the premise of analyzing the traditional mainstream theory focusing on the "direct purpose" of criminal penalty comparatively and from the "integration" penalty theory, this paper leads to the idea that the direct purpose of criminal penalty is comprehensive, specifies the concept difference and thread relation between basic purpose and direct purpose of criminal penalty, and points out that there is no essential conflict in "justifiable direct purpose" and only different leaves and stems from the "basic purpose". However, it is one-sided to prove the justification of criminal penalty with the efficiency of method and the validity of direct purpose.Thirdly, based on some criminal penalty design during the evolutionary history of criminal penalty, this paper presents the study train of thought that, guided by different direct purpose, the establishment and move of criminal penalty will be invalid if lacking of necessary essence:1、some "direct purpose" which criminal penalty wants to realize will be invalid because it does not come up to the basic purpose of criminal penalty;2、some "direct purpose" which criminal penalty wants to realize comes up to the need of basic purpose, but the criminal penalty is no use to "direct purpose", so it is irrational; 3、some direct purpose which criminal penalty wants to realize comes up to the need of basic purpose, but the criminal penalty takes negative effect on "direct purpose", so it is irrational;4、some direct purpose which criminal penalty wants to realize comes up to the need of basic purpose, but the value of criminal penalty is higher than the value which direct purpose wants to protect, so it is irrational; 5、some direct purpose which criminal penalty wants to realize comes up to the need of basic purpose, but the method is alternative, and the interest of using criminal penalty is lower than which of the alternative, so it is irrational.At last, this paper puts forward that the justification of criminal penalty includes two aspects:formal justification and substantial justification, and builds a system of criminal penalty justification including of formal justification and substantial justification. The formal justification of criminal penalty contains this requirements:1、the power of criminal penalty comes from legal regime; 2、the subject who establishes criminal penalty is legal; 3、the subject who exercises criminal penalty is legal; 4、the exercise of criminal penalty power is in accordance with legal procedures. The substantial justification of criminal penalty contains this requirements:1、the source of criminal penalty——state power should be justifiable, and its rule should be really accepted by people. This state power must contain three requirements which are "democracy、constitutionalism、rule of law"; 2、the establishment and the run of criminal penalty power, which comes from the justifiable state power, should suit the basic purpose of" protecting rights、promoting well-being and promoting human development"; 3、criminal penalty should achieve the direct purpose of "repay"; 4、criminal penalty should achieve the direct purpose of "prevention"; 5、meanwhile, the run of criminal penalty should be efficient.

Research on the Legitimacy of Penal Punishments

Abstract

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