China criminal law

The concept of the principle of balance between crime and punishment

The concept of balance between crime and punishment can be traced back to homomorphic revenge in primitive society and equal revenge in slave society. An eye for an eye and a tooth for a tooth are the most primitive and vulgar expressions of the idea of balancing crime and punishment. As a basic principle of criminal law, the balance between crime and punishment was first put forward by enlightenment thinkers in the eighth century and was regarded as an important principle of criminal law after the victory of bourgeois revolution. It is worth noting that since the end of 19, with the rise of the school of criminal anthropology and the school of criminal society, the traditional principle of the balance between crime and punishment has been strongly challenged. The emergence of the actor-centered theory and the theory of personal danger, the implementation of security measures and life imprisonment system have weakened and excluded the principle of balance between crime and punishment in criminal legislation. However, the fairness contained in the principle of balance between crime and punishment has always been an important criminal law value pursued by human beings. Therefore, judging from the criminal legislation of various countries in the world today, although the principle of balance between crime and punishment has been revised in content, its position as a general principle of criminal law is unshakable.

Article 5 of China's criminal law stipulates: "The severity of punishment should be commensurate with the crimes committed by criminals and the criminal responsibilities they bear." It can be seen that the principle of balance between crime and punishment in China's criminal law actually includes two aspects: the severity of punishment is commensurate with the crime committed and the severity of punishment is commensurate with the criminal responsibility assumed. The severity of punishment is compatible with the crime committed, which embodies the concept of retribution, and requires the severity of punishment to be compatible with the social harm of criminal behavior, that is, heavy punishment for felony and light punishment for misdemeanor. The severity of punishment is compatible with criminal responsibility, which embodies the concept of prevention and requires that the severity of punishment be compatible with the personal danger of criminals. Therefore, the principle of balance between crime and punishment in China's criminal law embodies the criminal law concept of the unity of retribution and prevention. Of course, this unity is not equally divided, but should be focused on, that is, retribution is the main thing, supplemented by prevention. Reflected in the provisions of Article 5 of the Criminal Law, the severity of punishment should be adapted to the crime committed, supplemented by the severity of punishment should be adapted to the criminal responsibility assumed.

Second, the legislative embodiment of the principle of balance between crime and punishment.

In addition to clearly stipulating the principle of balance between crime and punishment, China's criminal law always runs through the concept of balance between crime and punishment in the legislative content. The concrete manifestation of this principle in criminal law is

(A) a scientific and rigorous criminal law system

The general principles of China's criminal law have established a scientific penalty system, which is arranged in the order of severity of penalty methods. There are differences and connections between various punishment methods, which can be flexibly applied according to various situations of crime, thus laying a foundation for the realization of the balance between crime and punishment in criminal justice.

(two) the principle of punishment for different treatment

According to the degree of social harm and personal danger of various behaviors, the principle of differentiated punishment is stipulated in the general principles of criminal law in China. For example, crimes caused by excessive defense or excessive defense should be mitigated or exempted from punishment; Compared with the accomplished crime, the prepared crime can be given a lighter, mitigated or exempted punishment; Attempted crime can be given a lighter or mitigated punishment than accomplished crime, and so on. In addition, the general principles of criminal law also focus on the requirements of individualization of punishment, and stipulate a series of penalty discretion and execution systems, such as recidivism system and parole system.

(3) The range of sentencing is different.

The specific provisions of China's criminal law not only establish a criminal system according to the nature and harm of crimes, but also stipulate separable, flexible and substantial statutory penalties for various specific crimes. This enables the judicial organs to impose corresponding penalties on criminals according to the nature of the crime, the severity of the crime and the subjective malignancy of the criminals. Third, the judicial application of the principle of balance between crime and punishment.

According to the basic requirements of the principle of balance between crime and punishment, combined with the actual situation of criminal justice in China, judicial organs should first solve the following problems when implementing this principle:

(A) pay attention to sentencing activities

To implement the principle of balance between crime and punishment in judicial practice, we must first correct the wrong tendency of emphasizing conviction and neglecting sentencing, and put sentencing and conviction in the same important position. For a long time, there has been a wrong understanding of the importance of sentencing in criminal trial activities. It is considered that the sentencing range of crimes stipulated in China's criminal law is quite large, and as long as the nature is accurate, it doesn't matter how many years it is sentenced. Based on this understanding, when handling complaints and appeals, an unwritten rule has been formed, that is, only those whose nature is really wrong, or those whose sentences are extremely light and heavy, will be changed, while those whose sentences are light and heavy will maintain the original judgment. In view of this erroneous tendency, in order to effectively implement the principle of balance between crime and punishment, it is necessary to raise the awareness of judicial organs and judges on the importance of sentencing, and take qualitative accuracy and appropriate sentencing as an inseparable unified standard to measure the quality of criminal trial work, so as to test the handling results of each specific criminal case.

(2) Correcting the doctrine of severe punishment

To carry out the principle of balance between crime and punishment in judicial practice, we must also correct the wrong concept of heavy punishment and strengthen the law enforcement concept of fair sentencing. Due to various complicated historical and practical reasons, China was deeply influenced by the concept of feudal criminal law. As one of the important manifestations of feudal criminal law, the tradition of severe punishment is deeply rooted in the hearts of some judges. Especially in the period of bad public security, the concept of severe punishment is particularly prominent. It must be pointed out that the doctrine of severe punishment is a barbaric and backward criminal law concept, which is directly opposite to the principle of balance between crime and punishment. Therefore, we must clearly understand the harm of severe punishment, and urge every judge to establish the concept of fair sentencing, and punish him as a crime instead of wasting his time.

(C) to achieve a balanced sentencing

Whether we should implement the principle of balance between crime and punishment in judicial practice, we should also correct the disparity between the severity of sentencing and realize the balance of sentencing. According to the principle of balance between crime and punishment, similar cases should be handled to the same extent. However, from our actual situation, there is a gap in the handling of similar cases by different courts. Cases with basically the same situation happen from time to time. If it is tried by different courts, or even by different judges in the same court, the final verdict may be quite different. The reasons for this phenomenon include carelessness in legislation, lack of uniform standards in judicial activities, and various complicated factors such as the personal professional quality of judges. In order to solve the imbalance of sentencing, we should further strengthen judicial interpretation and provide clear standards for the correct application of punishment. At the same time, it is necessary to strengthen the compilation of criminal precedents and attach importance to the guiding role of precedents in criminal trials. In addition, we should improve the sentencing methods and gradually realize the standardization, scientificity and realism of sentencing.

principle of a legally prescribed punishment for a specified crime

A legally prescribed punishment for a crime is a product of the Enlightenment, which can be traced back to Montesquieu's Persian Letters. It was Italian jurist Beccaria who really raised the legality of a crime to the general principle of criminal law. The principle of a legally prescribed punishment for a crime includes two basic aspects. First, if the law expressly stipulates that it is a criminal act, it shall be convicted and punished according to law; Second, if the law does not stipulate that it is a criminal act, it shall not be convicted and punished. The first aspect can be called positive principle of legality; The second aspect can be called the negative principle of legitimacy. Positive principle of legally prescribed punishment for a specified crime and negative principle of legally prescribed punishment for a specified crime have their own meanings. The unity of the positive principle of a legally prescribed punishment for a crime and the negative principle of a legally prescribed punishment for a crime, the use of penalty power to punish crimes, protect human rights and limit penalty power, prevent abuse and protect human rights, is the comprehensive and correct meaning of the principle of a legally prescribed punishment for a crime. The significance of these two aspects of the principle of a legally prescribed punishment for a crime is concentrated on one point, that is, protecting human rights, which is the real significance of the principle of a legally prescribed punishment for a crime in China.

The principle of a legally prescribed punishment for a crime is one of the basic principles of China's criminal law. To put it simply, it means "there is no express stipulation that no crime is committed, and there is no express stipulation that no punishment is imposed", that is, "crime must be lawful and punishment must be lawful". The following principles are derived from this: (1) Legalism; Exclude customary law; Exclude absolute indefinite punishment; There is no analogy; It is forbidden to repeat laws retroactively; Clarity of criminal law.

Traditionally, the ideological basis of a legally prescribed punishment for a crime is the theory of natural law, the theory of separation of powers and the theory of psychological compulsion, but now it is generally considered to be the idea of democracy and respect for human rights, or democracy and freedom. Democracy requires the legalism of criminal law, that is, the penalty must be prescribed by law in advance, and the penalty cannot be abused. Respecting human rights means that criminal law should protect human rights and not hinder citizens' freedom of action, so citizens must be able to predict the nature and consequences of their actions, and crime and punishment must be clearly defined in advance. The principle of legally prescribed punishment for a crime is the requirement and embodiment of safeguarding human rights in modern society. The function of criminal law is to crack down on crime and protect the public from the perspective of the state; From the public point of view, we should limit state power and protect human rights. On the one hand, a legally prescribed punishment for a crime must be convicted and punished according to law, which reflects the state's protection of civil rights; On the other hand, if the law does not stipulate that it is a crime, it shall not be convicted and punished, which embodies the restriction of state power and the protection of human rights. Therefore, the principle of a legally prescribed punishment for a specified crime is an organic combination of the functions of criminal law, and its ultimate goal is to protect human rights.

The concept of the principle of equality between crime and punishment

Equality before the law is a universal principle established by our constitution. In view of the fact that the unequal application of criminal law is still serious in China's judicial practice at this stage, in order to implement the constitutional provisions, Article 4 of the Criminal Law clearly stipulates: "All criminals are equal in the application of law. No one is allowed to have the privilege of transcending the law. " This is the principle of equality between crime and punishment. The basic meaning of the principle of balance between crime and punishment is: as far as criminals are concerned, anyone who commits a crime should be investigated by law; No one shall enjoy privileges other than those prescribed by law; Regardless of the criminal's social status, family background, professional status, property status, political outlook, talent and performance, the criminal law will be equally applied, and the same punishment will be imposed when convicted and sentenced. As far as the victims are concerned, all those who have been infringed by crimes should be investigated for crimes according to law to protect the rights and interests of the victims; The same rights and interests of victims should be protected by the same criminal law; The conviction and sentencing of criminals shall not be different because of the identity, status and property status of the victims.

The principle of equality between crime and punishment is embodied in the following three aspects in criminal law.

(1) Equality of belief

Equality of conviction means that anyone who commits a crime, no matter how high his status or how much contribution he has made, should be investigated for criminal responsibility without exception. In our society, although the legal privilege has been eliminated, the feudal privilege thought still exists deeply; The social foundation of feudal hierarchy still exists to a certain extent, so some people evade the law by virtue of their special status and identity. Therefore, equality of conviction is of great significance. The principle of equality of conviction is embodied in the specific provisions of criminal law, for example, Articles 6 to 6 of the Criminal Law clearly stipulate the spatial scope of application of criminal law in China. These provisions show that as long as the criminal acts stipulated in China's criminal law are committed, Chinese people and foreigners are equal in the application of China's criminal law, regardless of whether they are inside or outside China, unless otherwise stipulated by law, and there is no privilege beyond the law. In addition, the provisions on specific crimes in the specific provisions of China's criminal law also reflect the principle of equality between crime and punishment, especially to adapt to the changes in China's economic structure, from the past emphasis on legal protection of public property to equal protection of public and private property. If the crime of destroying collective production stipulated in article 125 of 1979 criminal law is amended to the crime of destroying production and business operation stipulated in article 276 of 1997 criminal law, the scope of protection will be expanded from collective production to individual production.

(2) Equal sentencing

Refers to the implementation of the same crime, in addition to the statutory heavier, lighter, mitigated punishment circumstances, should be punished with the same penalty. Therefore, equal sentencing does not mean absolute punishment for the same crime regardless of the circumstances of the crime. Article 6 1 of the Criminal Law stipulates: "When deciding the punishment for criminals, they shall be sentenced according to the facts, nature and circumstances of the crime and the degree of harm to society, in accordance with the relevant provisions of this Law". This sentencing principle embodies the spirit of taking facts as the basis and law as the criterion, and also contains the content that all criminals should be punished fairly and equally according to law.

(3) Equality in implementation

Equality of execution means that in the execution of punishment, they are treated equally and cannot be special because of their status and status.

In the past, when discussing the principle of equality between crime and punishment, we often paid attention to the equality between conviction and sentencing, but ignored the equality in execution, which should not be done. Especially in real life, the inequality in execution exists objectively, especially some people get illegal commutation and parole through various means, which greatly damages the seriousness of the judgment. Therefore, the criminal law strictly stipulates the procedures of commutation and parole. Article 79 of the Criminal Law stipulates: "For the commutation of a criminal, the executing organ shall submit a proposal for commutation to the people's court at or above the intermediate level. When trying a case, the people's court shall form a collegial panel, and if there are facts of repentance or meritorious service, it shall make a ruling to reduce the sentence. No commutation shall be allowed without legal procedures. " This provision embodies the equality of implementation.

Third, the judicial application of the principle of equality between crime and punishment.

The principle of equality between crime and punishment should be embodied not only in legislation, but also in judicial activities. To implement the principle of equality between crime and punishment in judicial application, we should pay attention to the following issues: (1) A correct understanding of the principle of equality between crime and punishment is reflected in judicial application, that is, different people are treated equally according to law. Of course, equality between crime and punishment does not mean absolute punishment for the same crime. Therefore, the relationship between equality and difference should be correctly coordinated in judicial activities. Equality does not completely deny differences, but is based on correct differences in different situations. There can be no equality without difference. The essence of equality lies in justice. Any difference that helps to realize the justice of criminal law should be recognized and does not violate the principle of equality between crime and punishment.

(2) Oppose feudal privileges. Due to the influence of feudal traditional hierarchical thought, the interference of many factors in real life on fair law enforcement, and the reasons of judicial level, judicial consciousness and the quality of judicial personnel, it should be admitted that there is still a privileged phenomenon that the application of criminal law violates the principle of equality between crime and punishment in China's judicial practice. To uphold equality before criminal law, we must oppose all kinds of privileged ideas in criminal judicial activities, so that as long as it is a crime, we must apply the criminal law equally, investigate its criminal responsibility and punish it, and no one is allowed to have privileges beyond the law.